Commissioner: Ramadimala Jacky Mateta
Date of the Ruling: 15 November 2023

In the ARBITRATION between

Mogale Naum
(Union/Applicant)

And

Department of Education-North-West
(Respondent)

Union/Applicant’s representative: Mr. D Seakgosing (NAPTOSA Official)

Respondent’s representative: Mr. K.M.M Keetile (LR/IR Official)

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was held on the 19th of September 2023 and were finalized on the 31st of October 2023 at Bojanala District offices of the respondent, the Department of Education-North-West in Rustenburg.

2. The applicant, Ms. Naum Ngwana-Maloka Mogale(“Applicant” hereinafter) attended the proceedings and dealt with her matter represented by Mr. David Billy Seakgosing, an official from the trade union NAPTOSA.

3. The respondent party Department of Education-North-West (“Respondent” hereafter) were also present and represented by Mr. Martin Keetile, an official from the Labour Relations division of the respondent.

4. The hearing followed only an adversarial approach as both parties were sufficiently represented in the arbitration proceedings.

5. Only the applicant party submitted a bundle of documents, it was marked bundle A (“A” hereafter).

6. The proceedings were recorded both digitally and manually.

7. After conclusion of arbitration hearing parties requested for submission of their closing arguments in writing and there were given until the 7th of November 2023 to do so. At the conclusion of the award, written closing arguments were received from both the applicant and the respondent parties.

BACKGROUND TO THE ISSUES

8. Before starting with the arbitration hearing, parties submitted common cause issues and trying to narrow down the issues.

9. The parties agreed that that it is not in dispute that the applicant was an employee of the respondent. She appointed on the 9th of March 2021 on a limited duration/fixed-term contract which expiry date was the 31st of December 2022.

10. Parties also agreed that the applicant was occupying a PL 1 Educators’ Temporary substantive post at Platinum Village Primary School earning R19 798,25.

11. The applicant alleges at the time of termination, she was employed permanently by the respondent and that that she was dismissed by the principal of the school on the 12th of January 2023.

12. The respondent disputed dismissing the applicant and avers that the applicant’s termination was as the result of Fixed-term contract that expired at the end of its term as agreed by the parties.

13. The onus rested with the applicant to prove the existence of a dismissal.

14. Relief sought by the applicant is retrospective appointment to the substantive post that she was immediately prior to her dismissal.

ISSUES TO BE DECIDED

15. The primary dispute in the matter was an alleged unfair dismissal for unknown reason filed in terms of section 186(1)(a) of the Labour Relations Act 66 of 1995 (as amended). The existence of dismissal was in dispute.

16. I was therefore required to determine as to whether the applicant was dismissed, if found so to further determine as to whether dismissal of the applicant is procedurally and substantively fair or not. If not, I must determine an appropriate remedy in terms of the Labour Relations Act 66 of 1995 (as amended) (“Act” hereafter).

SUMMAY OF EVIDENCE AND ARGUMENT.

17. I am required in terms of section138 (7) (a) of the LRA to issue an award with brief reasons. I do not propose to offer an exhaustive survey of all the evidence and arguments led at the arbitration hearing. What follows is a concise summary of the evidence relevant to issues at hand.

APPLICANT’s CASE

Evidence

18. Mr. David Billy Seakgosing testified as the first witness of the applicant. The summary of his evidence is that he is an official of the trade union NAPTOSA. The applicant was their member and has been acting in accordance with the advice she was receiving from the trade union in the events that lead to this dispute.

19. The development of the events culminated from the point where the applicant brought to their attention documents appearing in page 7.1 to 7.4 of A. Page 7.1 is a letter which the applicant received from the principal which stated that her services would be coming to an end on the 30th of July 2022. They advised the applicant to ignore the letter and continue working. The applicant continued working and nothing happened.

20. The applicant again brought a letter in page 7.2 of A to the trade union. The letter was dated the 5th of October 2022, written by the principal on a letterhead of the school. The letter was a notice of termination informing the applicant that her termination of service would be with effect from the 31st December 2022.

21. They again advised the applicant to ignore the letter and continue working. She continued working and again issued with the letter on page 7.3 of A. The letter was on the respondent’s Bojanala District’s letterhead but signed by the principal. They advised the applicant to ignore the letter and continue working as there were some developments in the Provincial Chamber between the respondent and trade unions regarding termination of temporary educators. Attached on the letter was page 7.4 of A, a proforma that required the applicant to sign and acknowledge receipt of a letter in page 7.3 of A. The applicant was advised to ignore the documents.

22. From the developments at the Chamber, the Bojanala District Director and the Superintendent General, issued communications in page 8.1 to page 9 respectively. Page 8.1 and 8.2 was written by the District Director inviting the educators who qualified to collect letters of conversion from temporary to permanent employment. Page 9 of A was generated by the Head of Department, (HOD) calling upon the extension of contracts of employment of all temporary educators who were on vacant substantive posts whose contracts were coming to an end on the 31st of December 2022. The letter from the HOD was saying that all contracts are extended until the 31st of March 2023 with the rider that the HOD is still generating a conversion list, which list was supposed to be completed by the 31st of December 2022.

23. Those documents according to the trade union were binding and supposed to have been followed by all managers. A list was generated (page 10.1 to 10.9 of A) and the name of the applicant also appears in the list. That means that the applicant was qualifying for conversion. The trade union went and requested for another list and was given page 11.1 to 11.17 of A. The name of the applicant was still there in the list.

24. The Platinum Village Primary School also developed a Staff-Establishment (page 12.1 of A) and the applicant was included. They had three (3) Grade R posts at the school and the applicant was a qualified Grade R educator. All these factors point to the fact that the applicant was actually appointed on a permanent basis and the principal in telling her that she must vacate the school, has actually dismissed her. Page 14 of A contains an extract that should assist to locate the applicant’s case under unfair dismissal disputes.

25. Under cross-examination, he conceded having been aware that the applicant was appointed on two consecutive fixed-term contracts of 12 months, being 07 March 2021 to 31st December 2021 and 1st January 2022 to 31 December 2022. When asked what his understanding were with regard to documents in page 7.1 to 7.3, he stated that they were notices that were informing the applicant that her fixed-term contract would be coming to an end. When asked why in his view, the notices were “fishing spree” as he alleged, he stated it was the manner in which they were issued and for the fact that each time the applicant continued working and nothing happened. He conceded to have not approached the principal and asked her the reason she issued them. He agreed that the applicant’s contract did not end at any time prior to 31 December 2022.

26. When asked what the purpose of Departmental circular in page 9 of A, he stated that it was intended to allow the discussions that were still going on between the employer and labour. He however conceded that the heading of the letter does not state what he said. When asked the reason why he said that the applicant’s contract was supposed to have been extended to the 31st of March 2023, he stated that the reason is that the applicant was not appointed on a promotional point but on a vacant substantive post.

27. He was asked to read paragraphs 1.1 to 1.2 in the letter in page 9 and read it as follows, “Temporary teachers who qualify to be converted to permanent appointment in terms of ELRC Collective Agreement No. 4 of 2018, since their conversion will be completed by 31 December 2022.; Temporary teachers appointed in vacant substantive posts which may be adversely affected by the 2023 PPN, if their schools lose posts; Temporary teachers appointed against promotional posts, whose contracts will be terminated when the advertised promotional posts is filled; Temporary teachers appointed as substitutes, whose contracts will be terminated when substantive incumbent of the post resumes duty.” He maintained that the applicant was not affected by any of the read conditions.

28. He maintained that the applicant’s dispute is still an alleged unfair dismissal dispute and not interpretation and/or application of the collective agreement stated above. He agreed that the process of converting temporary teachers as being ones captured in page 6.9 of A and as follows: “If the temporary educator has been employed in a temporary capacity for continuous period of at least three months at the time of conversion; the temporary educator qualifies for the post in question; the temporary educator is registered with SACE and that the temporary educator is a citizen or permanent resident of South Africa and a fit and proper person in terms of Immigration Act 13 of 2002”.

29. He however listed different requirements as being funded by Fundza Rixaka; educator being in excess; educator being on those posts, educator recommended by the SGB, Employer having compiled a list; list having been rectified by the Task Team; list given to HR to upload in PERSAL. When asked if the applicant’s name in was captured in PERSAL and if she was issued with the letter he stated yes. He could however not able to show the letter in bundle. He confirmed that the applicant did not attend the meeting referred to in page 8.1 and argued that she was supposed to have been invited by the principal at the school. He confirmed having not been aware of the reason why the applicant did not attend the meeting. He stated that the context of page 10.1 to 10.4 of A is that the applicant was converted. He however agreed that conversion and qualifying are not the same terms.

30. He conceded having testified that the school had (four) 4 Grade R posts in 2023 and that was the basis to which he said the applicant was supposed to have been absorbed. He however conceded not knowing what PPN is and how it works.

31. He maintained that the applicant was dismissed on the 12th of January 2023. He stated that the applicant’s last salary was in December 2022. He could not mention who invited the applicant to report on the 9th of January 2023. He maintained that she reported as the schools were re-opening and that in her view she was still employed as the circular that stated that her contract would be renewed until 31st March 2023. He agreed knowing Annexure D and as being for the purpose of applying for approval for an appointment against a promotional post. He stated it does not apply to the applicant’s case. He stands to hear the any witness that would be called to testify that the applicant was adversely affected and therefore did not qualify for conversion.

32. The applicant Naum Ngwana-Maloka Mogale testified. The summary of her evidence is that normally at their school they do allocation for the following year in December. In 2023 she was allocated Grade R (B) class. The allocation took place in the staffroom where all teachers were present.

33. On the 9th of January 2023 when schools re-open she reported for duty. All other temporary teachers also reported and they were all welcome. On the 10th of January 2023, all the temporary educators were called to a meeting by the principal. The principal, Ms. Sekopamotse told them that each one of them would complete a resumption of duty documents.

34. Ms. Sekopamotse then released others to go and complete the documents and told her (applicant) to remain. The principal told her that she was busy profiling the school for the year 2024. She said that the school had four qualifying Grade R teachers with only three classrooms, the other Grade R teacher was teaching Grade 1. For that reason, one of them in 2024 would be affected. She stated that since she (applicant) was the last one to come in amongst the 4, the following year she must decide on which one of the two options she chooses. First option was that she may go and teach in Grade 4; the second option to look for another school as her contract would have ended.

35. She (applicant) requested to be given time to apply her mind. On the 11th of January 2023, leaners re-opened school and they were busy in classes. On the 12th of January 2023, the principal called her to the office. At the office the principal was with her deputies Ms. Modiba and Mr. Donald. The principal told her that they are no longer going to wait for her any longer to make decision. She (principal) told her to go to the classroom, pack her belongings, and bring the school resources and leave. Neither of her deputies said anything and she went to the class as directed. That in her view the principal has dismissed her from work.

36. Under cross-examination, she agreed that she was given two options to chose in preparation for 2024; that she requested for time to make up her mind about what she wants in 2024 and later told to go in 2023. She could not explain how that would happen and as to what she was supposed to do in 2023. She stated that there were no issues related to requirements of the school for 2023 that were discussed as everything for 2023 were done in 2022 December.

37. She agreed that the school had four Grade R teachers and three classrooms. When asked as to where the other Grade R teacher was, she said that the other Grade R teacher was teaching in Foundation Phase and was only brought to teach Grade R after her dismissal.

38. She in conclusion indicated that in 2022 there were no mention that anyone would be declared in excess in 2023. The other six temporary educators were given resumption of duties forms and completed.

RESPONDENT’s CASE

39. Ms. Dikeledi Vilma Sekopamotse testified as the first witness in the respondent’s case. The summary of her evidence is that she was the principal of Platinum Village Primary School, the school where the applicant was employed. She has been the principal of the school since November 2017.

40. She denied having dismissed the applicant from work. The applicant was appointed by the respondent on a fixed-term contract that expired on 31 December 2022. She never promised the applicant that her contract would be extended. The applicant was notified that her contract would not be extended.

41. She issued the letter in page 7.1 of A, a notice of termination of service. The reason why she issued the notice is that normally in their district they have a norm that when there is a promotional posts Gazette issued, all the temporary educators in the schools would receive notices of termination of their fixed-term in case the post has been filled by the candidate from outside the school.

42. In case of page 7.1. of A there was Promotional Posts Gazette issued in the Gazette which implied that if the appointments are made, temporary educators’ contracts would come to an end on the 31st of July 2022. There was no promotional appointment of any person from outside hence the temporary educators’ contracts continued.

43. An instruction was issued by the district office to issue all the temporary educators with notices to notify them that their contracts would be coming to an end. She then issued a notice in page 7.2 of A to all temporary educators, the applicant included. Later in November 2022, the circuit manager issued a proforma that should be filled by the schools to be issued to all temporary educators.

44. She called a meeting with all the temporary educators and informed them that the school has already issued a three months notice in page 7.2 of A however, they received a proforma from the circuit which should be filled and given to all as a month notice. All were then given the same notice on a proforma stamped by the school and signed by the principal. Page 7.2 and 7.3 of A are both proper and official documents given to all temporary educators and there was no fishing expedition or personal vendetta as envisaged by the applicant. It was normal practice and the applicant has been receiving same documents all along like other temporary educators.

45. She never told the applicant in December 2022 that she would be retained in January 2023. The applicant reported in January 2023, and she called her and explained to her in the presence of the deputy principals that as per the needs of the school, the school did not have post anymore. She explained to the applicant that the 4th Grade R post that they were having was an INTESEN post and would be allocated to Grades 1 to 7.

46. The circular that was referred by the applicant in page 9 of A is saying that contracts for temporary educators would be converted. It also says that the conversation was supposed to have been finalized on the 31st December 2022. Before the 31st of December 2022, they checked and found that there was no one converted at their school.

47. She then went to the HR department and told them about the situation at their school that they had four Grade R posts, they only have a space for three Grade R classes and that they actually needed a post at higher grades as per PPN. HR advised her to write a letter. She then wrote a letter and the Department allocated the fourth Grade R post to the higher grades.

48. She discussed this with the applicant and explained to her the situation. The applicant given an option to teach Grade 4 and the applicant outrightly indicated that she would not be able teach Grade 4. Even if the applicant had opted to do that, they would still have problem because they had started profiling the school and started putting each educator in the position that they are best qualified for. Another permanent educator who was in a higher grade but better qualified to teach Grade R, was already to be placed to teach Grade R.

49. The principal does not convert posts or convert temporary educators. The principal is only to write and explain the school needs the Department who then decides. ELRC Collective Agreement (Page 6.1 of A) provides for conversion of temporary educators to posts on the educator establishment. Having regard to paragraph 4.2.1.2, the applicant did not qualify as per the school needs.

50. Under cross examination she agreed that the applicant was appointed by the Department on as a temporary educator in 2021. She explained the process that was undertaking when the applicant was recruited and appointed. She agreed to have stated that there was a norm and also that they received an instruction to issue notices to temporary educators. When asked how, she stated that the instructions were mostly issued through e-mails and WhatsApp group and that other colleagues in the group may attest if there was a need.

51. She conceded that her school did not have a vacant promotional post advertised in the Gazette however she argued that the instruction was that the notice should be issued to all temporary educators irrespective of whether a school has such advertised post or not. She stated that after issuing the notice in page 7.1, all temporary educators were called to a meeting and it was explained to them that the school did not have promotional post to fill and that they must come after the 31st July 2022. She denied that what she was telling was not the truth as she did not bring along any supporting documents and argued that if she were to be allowed to bring the same, she could have done so.

52. She stated that she had authority to issue a notice in page 7.3 of A as per instruction that they received on the 24th of November 2022 through a WhatsApp. She argued that the applicant should not read circular which says temporary educators’ contracts must be extended to 31st March 2023 in isolation as there were conditions that should be met and they as the school also had to get clarity of those conditions and were advised. She agreed to have not enquired from the author of the document and argued that she followed a protocol and enquired from her immediate supervisors.

53. She agreed that the first point to generate PPN was from the school inputs in respect of the school needs, is submitted to the circuit, the district and the province comes up with the final PPN. She conceded to not to have any excess educator at her school. She confirmed that all allocation were done in December of the year preceding the year it is to be utilized and that all the names educators who are present during that time would be included irrespective of whether they would return the following year or not.

54. She stated that the school had four Grade R posts for 2023, that the fourth was placed and teaching Foundation Phase grades and was to be brought back to Grade R as a result continuous profiling the school. She stated that there was a need to continuously profiling the school as the school was initially lower primary that it was upgraded and as a result, each year she is required to make sure that each educator is correctly placed and teaches the subject that he/she has specialized in. She testified that the applicant services ended on the 31st of December 2022 and that the applicant was paid up to that time. The applicant reported in January 2023, did some work at the school and the SGB took a decision to compensate her for the period that she was at the school.

55. Ms. Tebogo Modiba testified as the second witness of the respondent. The summary of her evidence is that she a Deputy Principal of Platinum Village Primary School. The applicant was a temporary educator teaching Grade R at the school. Her contract ended in December 2022. She was never in any meeting that the end of contracts where discussed. She is also not familiar with the notices in page 7.1 to 7.3 of A as it would normally be done by the principal. The administrative work was mostly done by the principal.

56. The school had four Grade R posts and three Grade 3 classes. One of the posts was held by the educator who was teaching Foundation Phase. The PPN is normally done by the principal. As a result of school profiling, the educator who was placed at INTERSEN phase was to be brought to teach Grade R. The applicant was a Temporary educator in Grade R. She was asked if she could teach Grade 4 and she showed reluctance to do so.

57. When the school reopened, the applicant was there. On the 2nd day of reopening, the principal called the applicant in her presence. The principal told the applicant that she was not supposed to be at the school and that she would talk to the SGB to compensate her for the days that she was coming to the school.

58. Under cross-examination she agreed to have been involved in the recruitment and selection of Foundation Phase educators and that the applicant, at the time of appointment, meet the needs of the school. She stated that the evidence that the applicant was appointed on a temporary position is the letters that she received from the Department. She was present in December 2022 allocation. They allocated every educator who was there at that moment but while having in mind that had others who were temporal and who may not be with them in the following year.

59. She conceded having seen the applicant during the first days of reopening in January 2023. She was also in a meeting where the principal told the applicant that the school did not have post for her. She however could not hear the principal giving the applicant options. The only options that she remembers about are during allocation in December 2022 when the applicant was given an option to teach Grade 4. She denied that the principal dismissed the applicant and stated that the applicant’s contract only came to an end and was not renewed.

ANALYSIS OF EVIDENCE AND ARGUMENTS

Whether the dismissal occurred

60. It is common cause that the applicant was appointed by the respondent as a temporary educator on limited duration contracts. It is also common cause that the 1st contract was from the 9th of March 2021 to 31st December 2021 and that the 2nd was from the 1st of January 2022 to 31st December 2022.

61. The applicant submitted in her bundle of documents an extract from Chapter 8 Unfair Dismissal and unfair labour practices. Her witness Mr. Seakgosing testified that the extract must give guidance and assist the commissioner to find that the applicant’s was dismissed. The extract could not be located as to what source is it coming from. It is however common cause as also confirmed by the applicant that her primary dispute is an alleged unfair dismissal dispute envisaged by section 186(1) (a) of the Act.

62. The applicant contended that before or after the expiry of her second fixed term contract, she was already appointed permanently. It is her contention that the respondent’s principal, Ms. Sekopamotse, told her to pack her belongings and in doing so, she was dismissed from employment.

63. It was not clear as to whether the applicant’s case was that her contract can be deemed to be of indefinite period. It was however not the applicant’s case that a reasonable expectation for permanent employment has been created.

64. As to whether dismissal was established depends firstly on whether I find on balance of probabilities that the applicant has succeeded in discharging her onus of prove, to prove that at the time of lapsing of her fixed term contract, she was appointed on a permanent basis.

65. The premise of any alleged unfair dismissal dispute should be coming from the provision of section 186 of the Act which provides for the meanings of dismissal and states as follows;

“(1) Dismissal means that-
(a) An employer has terminated employment with or without notice;
(b) An employee employed in terms of the fixed-term contract of employment 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 same or similar terms, but the employer offered to retain the employee on less favourablr terms, or did not offer to retain the employee.”

66. Section 198B(3) of the Labour relations Act 66 of 1995 as amended, provides for employers to employ employees on a fixed-term contracts or successive fixed term contracts for longer than 3 months only if the nature of the work is of a limited or definite duration or if the employer can demonstrate any other justifiable reason for fixing the term of the contract. Employment in breach of 198B (3) will be deemed to be of an indefinite duration and employees will be considered permanent.

67. The protection under section 186(1)(b) is further extended by the provision section 198B. The application of this section is however constrained by certain limitations. Amongst them is the employees earning above the threshold prescribed by the Minister in terms of Section 6 of the Basic Conditions of Employment Act. The applicant was earning R19 798,25.00 per month. At the moment threshold determined by the Minister in terms of BCEA sits at R241 110,58 per annum or R20 093.00 per month. The applicant is therefore within the threshold.

68. The other exclusion relevant to the arguments advanced in this matter, is the employees who are employed in terms of fixed term contract which is permitted by the statute, sectoral determination or a collective agreement.

69. It is also common cause that the applicant’s employment was in terms of Chapter 3, section 6(1) (b) and section 6(3) (a)-(e) of the Employment of Educators Act 76 of 1998 as amended. Section 7(2) (b) provides that a person may be appointed under the same chapter in a temporary capacity for a fixed period, whether in a full-time, part-time or a shared capacity. For that reason, the provisions of Section 198B (3) of the Labour relations Act 66 of 1995 (as amended) would not apply. The applicant’s contract of employment of the applicant cannot be deemed permanent under that section.

70. I considered the applicant’s evidence given by Mr. Seakgosing that the applicant was appointed on a permanent basis at the time of her termination. The reason he says were that each time when the applicant was receiving a notice of termination, the trade union advised the applicant to ignore the letter and continue working as there were some developments in the Provincial Chamber between the respondent and trade unions regarding termination of temporary educators.

71. I considered his evidence that the developments that were at the Chamber made Bojanala District Director together with the Superintendent General to issued various communications (page 8.1 to page 9 respectively). I considered his evidence that Page 8.1 and 8.2 was from the District Director inviting the educators who qualified to collect letters of conversion from temporary to permanent employment while Page 9 of A was generated by the Head of Department, (HOD) calling upon the extension of contracts of employment of all temporary educators who were on vacant substantive posts whose contracts were coming to an end on the 31st of December 2022. The letter from the HOD was saying that all contracts are extended until the 31st of March 2023 with the rider that the HOD is still generating a conversion list, which list was supposed to be completed by the 31st of December 2022. It is the applicant argument that she was qualifying to be converted into permanent and that her contract was supposed to extended to the 31st March 2023, whereafter she be given a letter of conversion.

72. I further considered his evidence that Platinum Village Primary School developed a Staff-Establishment (page 12.1 of A) and the applicant was included as one the three (3) Grade R educators. It is the applicant’s contention that all these factors they point to the fact that the applicant was actually appointed on a permanent basis. I considered the concession that he made, being that neither he nor the applicant asked the principal, why she was issued the notices; they did not ask the reason why the applicant’s name was written on the Staff-Establishment; and also his concession that he did not know the PPN and how it worked.

73. I considered his reading to the collective agreement paragraph which he read as follows, “Temporary teachers who qualify to be converted to permanent appointment in terms of ELRC Collective Agreement No. 4 of 2018, since their conversion will be completed by 31 December 2022.; Temporary teachers appointed in vacant substantive posts which may be adversely affected by the 2023 PPN, if their schools lose posts; Temporary teachers appointed against promotional posts, whose contracts will be terminated when the advertised promotional posts is filled; Temporary teachers appointed as substitutes, whose contracts will be terminated when substantive incumbent of the post resumes duty.” He maintained that the applicant was not affected by any of the read conditions.

74. He however maintained that the applicant’s dispute is still an alleged unfair dismissal dispute and not interpretation and/or application of the collective agreement stated above. It is common cause that the applicant was not given any letter of conversion or a letter of permanent appointment.

75. I considered the evidence given by the respondent’s witness Ms. Sekopamotse that she had a circular that was referred by the applicant in page 9 of A which was saying that contracts for temporary educators would be converted. I considered her evidence that the conversation was supposed to have been finalized on the 31st December 2022 and that even before the 31st of December 2022, they checked and found that there was no one converted at their school; that she then went to the respondent’s HR department and told them about the situation as per PPN and HR advised her to write a letter whereafter the Department allocated the fourth Grade R post to the higher grades.

76. I considered Ms. Sekopamotse evidence that she discussed with the applicant and explained to her the situation; that the applicant given an option to teach Grade 4 and the applicant outrightly indicated that she would not be able teach Grade 4; that even if the applicant had opted to take the option, it would still not helped because they had started profiling the school and started putting each educator in the position that he/she is better qualified; that another permanent educator who was in a higher grade but qualified to teach Grade R, was already to be placed to teach Grade R. Mr. Seakgosing conceded that conversion, qualifying and appointment are not the same terms.

77. There was no further evidence that seems to prove that she was appointed permanently. It is for that reason that I find that the applicant has failed to discharge her onus to prove that at the time of expiry of her fixed-term contract, or anytime thereto, she was already appointed as a permanent educator in terms Chapter 3, section 6(1) (b) and section 6(3) (a)-(e) of the Employment of Educators Act 76 of 1998 as amended.

78. Having found as above, I find that the applicant has failed to discharge her onus to prove the existence of dismissal. The applicant was never dismissed, her fixed-term contract came to an end and was never renewed.

AWARD

79. There was no dismissal.

80. The applicant applicant’s referral is dismissed.

Ramadimala Jacky Mateta

Sector: Public Service: Education