25 April 2025 -ELRC1082-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT VIRTUALLY

CASE NO: ELRC1082-24 /25GP

In the arbitration between

KHABONINA TERCIA QWABE APPLICANT

AND

DEPARTMENT OF EDUCATION -GP RESPONDENT

                                AWARD

DETAILS OF HEARING AND REPRESENTATION

The arbitration was scheduled for 20 March 2025. The applicant presented her case. The respondent was represented by Ms A. Ngwenya, its Labour Relations official. BACKGROUND
The applicant referred the unfair dismissal dispute to the Council. The certificate of the outcome of conciliation was issued with the dispute unresolved. The applicant referred the dispute for arbitration.

ISSUE TO BE DECIDED

The respondent raised a preliminary point that the applicant was not dismissed, but her fixed-term employment contract for a growth post ended. The respondent contends there was an error on the appointment letter. Accordingly, the Council lacks jurisdiction to arbitrate the dispute. The applicant contends that she was dismissed because she received an appointment letter for the substantive post. Therefore, I must decide if the Council has jurisdiction.

SURVEY OF EVIDENCE AND ARGUMENTS

The parties agreed to the following as common cause issues: 4.1 The applicant started working for the respondent as Educator PL1 on 1 April 2024; 4.2 She signed for the application for a temporary contract post with a start date of 1 April 2024 and end date 31 December 2024; 4.3 On 14 November 2024, the applicant was made aware of the post establishment for 2024/2025 and that those on temporary posts would cease to exist on 31 December 2024; 4.4 On 01 April 2024, the applicant was aware that she was on a Growth post. She worked until 31 December 2024. 4.5 Growth post is not similar to substantive post. The substantive post is permanent, a growth post is temporary. When on growth post, one does not qualify to be absorbed on a substantive post.
The applicant, Khabonina Tercia Qwabe testified that she received a temporary appointment letter for a substantive post on 16 May 2024. The letter was signed by the Director. A substantive post meant that she was waiting for a conversion to a permanent post. She did not understand when she was informed that her contract was ending on 31 December 2024 because she was on a substantive post.
During cross-examination, she conceded that the appointment letter on A1 indicates that her contract was temporary. The end date confirms that it was temporary. The last 2 pages of A bundle are the Acceptance Certificate. She conceded that she erroneously captured the wrong date. The correct date is 2024, not 2023. She conceded that the word on her appointment letter, ‘substantive,’ was erroneously underlined.
She read out R11 ‘subject allocation of growth post’. She conceded that it relates to her engagement on the growth post on 1 April 2024. The two growth posts on R11 were allocated to her and Hlongwane. Both posts ended on 31 December 2024, as they were temporary. However, she denied that her contract had come to an end. She contended that she was placed in a substantive post.
She conceded that she did not sign any GDE1 form except the one on R14. She conceded that her appointment and her appointment letter are a culmination of R14. She further conceded that R15 is an attachment of R14. When a version was put to her that the substantive was underlined erroneously, the same as she made an error in her Acceptance Certificate by writing 2023 instead of 2024, she insisted that she was on a substantive post based on the appointment letter.
She refused to comment when a version was put to her that her appointment letter would not exist if R14 was not there.
Peter Legoati testified for the respondent that when the applicant was employed in 2024, he was the acting principal. He is currently the deputy principal. R12 is a signed acceptance by SGB offering the applicant a growth post. R13 is the motivation for the appointment. The applicant was initially appointed to replace an educator who was on maternity leave from October 2023 to February 2024.
When the two growth posts became available, she applied and was considered. She accepted the appointment of a growth post from 01 April to 31 December 2024 based on the increased roll of learners. She was not on a substantive post. Hlongwane was appointed together with the applicant on a growth post, and her term also ended on 31 December 2024.
During cross-examination, she stated that she concurred with Legoati`s testimony and that she did not dispute his testimony. ANALYSIS EVIDENCE
In terms of Section 192 (1) of the Labour Relations Act 66 of 1995 as amended (‘LRA’) the employee bears the onus to establish the existence of the dismissal. Where the employee fails to establish the existence of dismissal, it is the end of the matter. The Council will lack jurisdiction to determine the fairness of the non-existent. However, section 192(2) of the LRA provides that once the dismissal is established, the onus shifts to the employer to prove the fairness of such dismissal.
In this case, the respondent disputed the existence of dismissal. It contends that her fixed-term contract ended, and she was not dismissed. Therefore, the applicant bears the onus to prove that she was dismissed. She contends that she was on a permanent post, not a fixed-term contract, warranting an unfair dismissal when her services terminated.
The applicant conceded that the post that she occupied culminated from R11, 14 and 15, which is the growth post. She was aware when she occupied the post on 1 April 2024 that it was a growth post ending on 31 December 2024. The heading of her appointment letter reads ‘Temporary Post,’ with the contents of the letter referring to a growth post.
She conceded and did not challenge Legoathi that ‘substantive’ was erroneously underlined. Similarly, she also committed an error in the acceptance certificate by writing 2024 instead of 2023. It is a common cause that, when on a growth post, one does not qualify to be absorbed permanently into a substantive post. Therefore, the applicant`s reliance on an error that she was in a substantive post is disingenuous.
Her permanent absorption into a substantive post on 16 May 2024 was impossible, as she contended. She signed a temporary contract post, which began on 1 April and ended on 31 December 2024. The only GDE 1 form she signed was for a growth post she occupied. Therefore, it is improbable that she could be appointed to a different post from the GDE1 that she signed.
She underscored her tricks by concurring with the respondent`s testimony that she was on a growth post. When allowed the opportunity to challenge the Acting Principal, she stated categorically that she agreed with him.
I accept the respondent’s unchallenged evidence that the applicant was on a fixed-term contract that ended on 31 December 2024. The labour appeal court held in Enforce Security Group v Mvelase and 46 others (DA 24/15) (2017) 38 ILJ 1041 (LAC) [2017] 8 BLLR 745 (LAC) that one instance that an employment contract can be terminated which does not constitute dismissal is a fixed term contract entered into for a specific period or upon the happening of a particular event. Once the agreed term expires or the agreed event materializes, it will not be a dismissal. However, it constitutes automatic termination of the contract by operation of law.
The applicant’s agreed fixed-term employment contract ended on 31 December 2024, as is the period she agreed with the respondent. I am bound by the court decision that the ending of the applicant’s fixed-term contract does not constitute dismissal. Therefore, I agree with the respondent that the applicant was not dismissed.
In SARPU and others v SA Rugby (Pty) Ltd and others; SA Rugby (Pty) Ltd and others v SARPU and another (CA 10/2005) [2008] ZALAC 3;[2008] 9 BLLR 845 (LAC) 92008) 29 ILJ 2218 (LAC) the labour appeal court held the CCMA lacked jurisdiction to arbitrate the dispute if the dismissal did not exist. The applicant failed to establish the existence of a dismissal as held in the SARPU, which decision aligns with Section 192 (1) of the LRA.