22 July 2022 – ELRC902-21/22WC

Panellist: Asnath Sedibane
Case No: ELRC902-21/22WC
Date of Award: 21 July 2022

In the ARBITRATION between:

THOM, W ______________
(Union / Applicant)
and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING
(Respondent)

Union/Applicant’s representative: Mr Webster Thom (Self-Represented)
Union/Applicant’s address: Telephone:
Telefax:
Email:

Respondent’s representative: Mr Mario Boezak
Respondent’s address:

Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between Thom W and the Department of Higher Education and Training was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings. The matter was set down for arbitration on 29 April 2022 and again on 30 June 2022, in terms of section 186(1) (b) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The leading of oral evidence was finalized on the 30th of June 2022 and it was agreed between the parties and the Panellist that the parties would submit their written closing arguments by no later than the 7th of July 2022. The proceedings were conducted in English and were manually and digitally recorded. Only the Respondent submitted written closing arguments on the 7th of July 2022.
3. The applicant was present and was self- represented and the Respondent was represented by Mr Mario Boezak, an official of the Department of Higher Education and Training.
4. The parties agreed to use a common bundle which was marked bundle “R”.
PRELIMINARY ISSUES
5. No preliminary issues were raised by either of the parties.
ISSUES TO BE DECIDED
6. The dispute was referred to the ELRC by the applicant as an Alleged Unfair Dismissal in terms of section 186(1) (b) of the LRA.
7. I was required to determine whether the respondent unfairly dismissed the applicant when the applicant’s fixed term contract was not renewed after it expired on the 31st of December 2021.
8. The relief that the applicant seeks is reinstatement.

9. After the narrowing of issues, it was decided that the following issues were common cause between the parties:
9.1 The applicant commenced service as a Lecturer in Mathematics at the College of Cape Town of the Department of Higher Education and Training (DHET) on 12 April 2010.
9.2 He is a Zimbabwean citizen with refugee status, working on fixed term contracts renewed annually, first with effect from 12 April 2010 with the Department of Education-Western Cape, then with Further Education and Training (FET) Cape Town College from 11 November 2012 and thereafter migrated to the DHET in 2015. His last contact was from 1 January 2021 to 31 December 2021.
9.3 The applicant’s work permit expired on 14 November 2021 and was renewed on 09 December 2021.
9.4 The applicant’s last contract was extended from 15 November 2021 to 31 December 2021 after his work permit was renewed.
10. The parties agreed that the following facts were issues in dispute:
10.1 Whether the applicant’s contract was renewed from 15 November 2021 to 31 December 2022, with the new contract dated 10 December 2021, signed on 13 December 2021, which was then retracted by the respondent.
10.2 Whether the Council of the College of Cape Town provided the applicant on 03 December 2021 with confirmation of placement for an indefinite period.
10.3 Whether there are still outstanding payments due to the applicant for the contract that expired on 31 December 2021.
10.4 Whether no reason was provided to the applicant as to why his contract would not be renewed in 2022.
10.5 Whether a reasonable expectation was created that the applicant’s fixed term contract would be renewed in 2022.
BACKGROUND TO THE DISPUTE
11. The applicant, Mr Webster was employed as a Lecturer the College of Cape Town, Pinelands Campus educator on successive fixed-term contracts from 14 April 2010 until 13 December 2021.
12. The fixed term contract was extended every year from July to December and was renewed in December every year until December 2021 when the contract was not renewed.
13. To prove their respective cases, both parties led and oral evidence and also referred to documents.
14. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Only the respondent submitted their written heads of arguments. I have considered the oral and documentary evidence from both parties as well as the respondent’s written closing arguments in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Webster Thom, testified under oath as follows:
15. He was employed by the respondent as a Lecturer on a 12 months’ fixed-term contract on 14 April 2010. He taught Fundamental Mathematics at the Pinelands Campus of the College of Cape Town.
16. The fixed term contract was renewed at the end of every year.
17. He was dismissed by the respondent on the 13th of December 2021.
18. He earned a monthly basic salary in the amount of R20500-00 at the time of the termination of his contract.
19. Whilst waiting for his work permit to be renewed in December 2021, he had received confirmation of placement. He had submitted the document to the Central office on 03 December 2021.
20. He had received a contract from the respondent that stated that it was from 10 December 2021 until 31 December 2022. He had then raised that the contract was supposed to be from 15 November 2021.
21. The mistake was corrected and the contract was from 15 November 2021 until 31 December 2022. He signed this contract on the 13th of December 2021.
22. In end of year meeting at the College, the Campus Manager had said that the College was still busy with contracts but that everybody’s job was secured.
23. He was shocked to receive a WhatsApp message from the Campus Manager, Mr Jennie Kriel on the 15th of December 2021, informing him that the College decided not to renew his Contract.
24. On pages 45 to 48 of bundle “R” is the contract of employment.
25. In terms of clause 18.1 and 18.2 on page 16 of bundle “R” provides that termination of the contract must be on one month’s written notice. The contract had been signed in 2015.
26. He did not get reasons for the termination of the contract. The only reason provided to him was that there had been a typing error on the contract. There was no typing error.
27. There were meetings held to plan for the year ahead. He was included in the plan for 2022.

28. His senior, Mr Jerome who is a post level 2 has now taken over his classes. Previously seniors only took one group.
29. Under cross-examination, Mr Thom confirmed that he understood fixed-term contracts and that they ran for a specified period. His was from January to December and it was over a period of five years. This due to his work permit. If he had permanent residence he would have been permanently employed.
30. He confirmed that there was nowhere in the contract where it was stated that there should be an expectation of renewal.
31. He confirmed that the contract with the end date of 31 December 2022 had been retracted.
32. He considers himself as having been dismissed because he had looked forward to 2022.
33. He conceded that the letter on pages 21 to 22 of bundle “R” was about confirmation of placement and had nothing to do with his fixed-term contract.
34. He understood that the extension of his contract was from 15 November 2021 until 31 December 2021.
35. Some of his colleagues received emails that their contracts would be renewed. The HR lady who sent him the retraction letter told him that they were still busy with the contracts.
THE RESPONDENT`S CASE:
The respondent’s first witness, Mr Stanley Cupido testified under oath as follows:
36. He is the Head of Department at the College of Cape Town. He heads three Programmes.
37. The applicant used to work under him when he ran the NCV Programme. The applicant was a Lecturer of NCV level 2.
38. In 2021 Mr Thom reported to Mr Canterbury.
39. Ms Martie Thaliad is a retired Lecturer. She was a post level 2 Lecturer at Thornton Campus. She retired sometime this year (2022).
40. The campus Manager had called him and said that a number of contracts were not renewed in 2022 and that affected one of his Lecturers. When he returned in early 2022 he was told that NCV now resided under him and that the number of classes would be reduced to eight.
41. He needed to design a timetable to accommodate the groups and Lectures. There were two Maths Lectures and the groups were shared between them.
42. Pages 28 and 29 of bundle “R” is the Campus staff needs for 2022. He was not part of completing the document. There was a drop in number of groups in 2022 and that meant that the College would not require as many Lecturers in 2022 as in 2021.
43. Under cross-examination, Mr Cupido reiterated that he was informed of the non-renewal of some contracts whilst he was already at home for the holidays.
The respondent’s second witness, Ms Daria Donatella Duncan testified under oath as follows:
44. She used to work at Pinelands Campus as HOD.
45. In 2021 she taught Maths NCV.
46. Page 28 of bundle R is the planning document which the previous Campus Manager, Mr Kriel would have done.
47. The student head count determines the number of groups needed. According to the document on page 28 of bundle “R”, it would be eight groups.
48. There were no contract Lecturers for the eight groups.
49. Pages 34 to 44 of bundle “R” was the report on registration numbers at Pinelands Campus. There was shortfall in the number of students and there was a possibility that the eight groups would be reduced to 7. After marketing was done, the eight groups were increased to nine. That was in February 2022.
50. There was no need for the applicant to teach Mathematics at Pinelands College.
The respondent’s third witness, Mr Mphumzie Booi testified under oath as follows:
51. He is the Deputy Principal: Corporate Services for the College of Cape Town. His role is to support Departments including HR, IT and Labour Relations.
52. Page 20 of bundle “R” was a letter to the applicant, to extend his contract. The period of the contract was from 01 January 2021 to15 November 2021.
53. The letter on page 24 of bundle “R” was written to the applicant, to extend his contract from 15 November 2021 to 31 December 2022. It was supposed to be until December 2021.
54. Mr Thom’s permit had expired before his initial contract could end and when he submitted a new permit his contract was extended.
55. On page 25 of bundle “R” was a replacement letter for the one that was erroneously issued with the expiry date of the contract stated as 31 December 2022.
56. The letter on page 23 of bundle “R” was a retraction letter, written to the applicant and dated 13 December 2021.
57. Pages 21 to 22 of bundle “R” was a confirmation of placement, sent to the applicant.
58. Under cross-examination, Mr Booi explained that the applicant had been paid an advance salary by the College when the DHET could not pay him because his permit had expired. He would pay back the money when the DHET paid him.
59. Campus Managers had been given the responsibility to communicate to the contract staff whose contracts would not be renewed in 2022. The Managers had to call meetings for that purpose. The information he received was that Mr Kriel had called such a meeting.
60. He was not aware of any staff member who was allocated a driver. The applicant could not be appointed for the cross-campus delivery post because of the requirement of a driver’s licence.
ANALYSIS OF EVIDENCE AND ARGUMENTS
61. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
62. The applicant’s case is based on section 186 (1) (b) of the Labour Relations Act 66 of 1995 which reads as follows:
Section 186
Meaning of dismissal and unfair labour practice:
(1) Dismissal means that-
(b) 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.
63. The respondent disputed that the respondent had been dismissed when his fixed-term contract was not renewed from January 2022.
64. Since there was a dispute on whether or not the applicant had been dismissed, the onus to prove the alleged dismissal in this case rested with the applicant.
65. It was the applicant’s contention that he was dismissed by the respondent on 13 December 2021 when the offer for the fixed-term contract that was for the period 15 November 2021 to 31 December 2022 was retracted.
66. The respondent led evidence to show that the applicant’s last fixed-term contract was from 15 November 2021 to 31 December 2021. There was an error when the applicant’s fixed-term contract was extended in December 2021 after the termination of his contract due to the expiry of his work permit. The extension had recorded the period as from 15 November 2021 until 15 December 2022 whereas the correct period was from 15 November 2021 until 31 December 2021. The respondent had duly retracted the offer letter and replaced it with the correct one and the applicant had acknowledged receipt of the retraction letter as well as the replacement letter. This evidence has not been rebutted by the applicant.
67. The respondent further led evidence that the applicant was not given a new fixed-term contract in 2022 based on the decline in enrolment numbers of students at the College. The decline in enrolment numbers had led to the reduction in the number of groups that were allocated to Lecturers and the current status was that only full time Lecturers were allocated the groups of students. There was no need for contract Lecturers hence the contract Lecturers including the applicant were not offered new contracts in 2022.

68. The applicant alleged that the staff had been told by the then Campus Manager, Mr Kriel in a staff meeting in December 2021 that everyone’s contract was safe. The applicant has not led any evidence either in writing or through any witnesses to corroborate his evidence of an expectation of the renewal of the fixed term contract. The respondent had refuted that such an expectation for renewal had been made to the applicant.
69. The onus to prove whether there was dismissal in terms of section 186(1) (b) in circumstances where a fixed-term contract was not renewed or was renewed on less favourable terms, in each case rests with the applicant who alleges such dismissal. The Labour Court in Member of the Executive Council for the Department of Finance Eastern Cape v Milander & Others(2011)32 ILJ 2521 (LC) summarised the approach adopted in determining whether a reasonable expectation of renewal of a fixed-term contract has been established. The court held in this case that such a test involved a dual inquiry. The first inquiry is a subjective one and entails enquiring into the subjective basis upon which an employee contends that his/her contract ought to have been renewed. If the employee fails to show that he/she had a reasonable expectation that his/her contract would be renewed then that brings the inquiry to an end. However if the employee succeeds in showing that he/she subjectively expected that his/her fixed-term contract would be renewed then the second enquiry entails a determination of the existence of such expectation on the basis of the objective facts that existed prior to the termination of the contract.
70. The applicant’s contention of a reasonable expectation of the renewal of his fixed-term contract for 2022 has not been substantiated with any evidence. He has therefore failed to prove the reasonable expectation. The LAC judgement in South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others [2008] 9 BLLR 845 (LAC) in paragraph 43 states as follows: “What section 186 (1) (b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it . The operative terms of section 186(1) (b) are in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed term contract or renew it on less favourable terms. The fixed- term contract should also be capable of renewal.” The applicant in this matter could not discharge the onus required to prove the reasonable expectation for renewal of the fixed-term contract.

71. The applicant did not lead any evidence on the allegation that the respondent still owed him remuneration based on the fixed-term contract that was terminated at the end of December 2021. I therefore find in this regard that the respondent did not owe the applicant any remuneration pertaining to the fixed-term contract.
72. Having said the above, I find that on a balance of probabilities the applicant failed to prove that he was dismissed when his fixed-term contract that expired on 31 December 2021.

Award
1. The applicant has failed to prove on a balance of probabilities that he was dismissed by the respondent, the Department of Higher Education and Training, in terms of section 186(1) (b) of the LRA.
2. As a result of the aforesaid, the applicant’s application is dismissed.

Asnath Sedibane
ELRC Dispute Resolution Panellist