In the ARBITRATION between:

Sylvester Mavimbela Employee

And

Department of Education -(Gauteng) Employer

Employer’s representative: Mr M Hlapolosa
Employer’s address: Gauteng Central District
Johannesburg
2018

Telephone: 011 443 2908

Employee’s representative: In person
Respondent’s address: PO Box 17279
Witbank 1035

Telephone: 078 139 6061

DETAILS OF HEARING AND REPRESENTATION

[1] This is the award in the arbitration between Sylvester Mavimbela, (hereinafter referred to as the Applicant) and Department of Education, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 17 July 2019 at the Department of Education Offices, Sandton, Johannesburg.

[2] The Applicant was present at the arbitration and was not represented. The Respondent was represented by, Mr Motsiri Hlapolosa, its Dispute Management Official.

[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the LRA). The award is issued in terms of section 138 (7) of the LRA.

[4] The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.

[5] A single bundle of documents was admitted into evidence marked Annexure “A” and the content was not in dispute.

ISSUE TO BE DECIDED

[6] I am required to determine whether the termination of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.

BACKGROUND TO THE ISSUE

[7] The Applicant was employed on a temporary fixed term contract as an educator, earning a salary of R17000.00 per month.

[8] The recent fixed term contract entered into by the parties commenced on the 1st of January 2018 and ended on the 31st of December 2018. The previous temporary contract of employment entered into between the parties was also for a period of 12 months.

[9] The Applicant was temporarily appointed to teach music at Realogile High School.

[10] The Applicant claimed that he was unfairly dismissed and he had an expectation that his temporary fixed term contract will be renewed.

[11] The Respondent claimed that the Applicant was not dismissed, but his fixed term contract came to an end. The Respondent further stated that the reason why the Applicant’s contract was not renewed was due to operational reasons.

[12] The Applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for reinstatement.

SURVEY OF ARGUMENTS AND EVIDENCE

Applicant’s submissions

[13] Mr Sylvester Mavimbela testified under oath that he was employed temporarily by the Respondent as an Educator. His place of work was Realogile High School. Both parties entered into a temporary fixed term contract of employment. The duration of the contract was twelve months. He said he was verbally told by the Principal of the School that there was a recommendation from the Head of Department at Realogile High School that his contract should not be renewed. He stated that he was never told by the Respondent that his contract was not going to be renewed. No written notice was given to him regarding the non-renewal of his contract. The Applicant denied that he had only one learner to teach. He said he had three learners to teach for the whole year of 2018.

[14] Under cross-examination the Applicant confirmed that two of his learners were adults. One was a radio presenter from Alex FM Radio Station and the other was a full time employee from one of the retail shops. The Applicant confirmed that he does not have the records of his students. He said the Principal promised him that he would renew his contract. The Applicant also confirmed that he knew from the beginning of January 2018 that his fixed term contract would expire on 31 December 2018.

Respondent’s submissions

The Respondent had two witnesses who testified in support of its case. The evidence was briefly as follows:

[15] Mr Matthews Chosi testified under oath that he is employed by the Respondent as a Principal at Realogile High School. He said the Applicant was employed as a Temporary Educator for music for a period of twelve months. The Applicant’s appointment was necessitated by a Project established by the Department of Education. The reason why the Applicant’s contract was not renewed was due to operational requirements. The Applicant had only one learner to teach and this was not sustainable and was regarded by the School as a wasteful expenditure. The learner taught by the Applicant was from a Primary School. The learner was a Grade 5 learner from Ithute Primary School. The Applicant was aware that his contract would expire on 31 December 2018. He told the Applicant verbally around November 2018 that his contract would not be renewed. The Applicant was not dismissed but his temporary contract of employment expired.

[16] Under cross-examination the Respondent confirmed that the Applicant was informed verbally that his contract was not going to be renewed. He was also given the reason for non-renewal. The Respondent said that Circular 74 of 2002 stipulated that it was the Educator’s responsibility to identify and recruit music learners.

[17] Mr Thembaonjani Mathonsi testified under oath that he is employed by the Respondent as a Head of Department at Realogile High School. The Applicant was his direct subordinate. The Applicant was informed by the Principal around November 2018 that his contract was not going to be renewed. The Applicant had one learner to teach music for a period of two years and this was not fair and sustainable. This was mostly the only reason why the Applicant’s contract was not renewed. The Applicant failed to identify and recruit learners for his class. The Applicant was teaching a Grade 5 learner from a Primary School. The subject taught was music. The Applicant was paid R17000-00 rand per month. It was a waste of Government resources and money. A letter of termination was drafted by the Principal and was served on the Applicant around November 2018. The Applicant was not dismissed but his temporary contract of employment expired. He never recommended for the Applicant’s non-renewal of his contract as he had no powers to do so.

[18] Under cross-examination the Respondent stated that Magnet Guidelines stipulated that each teacher must identify and recruit students from Feeder Schools. The Applicant failed to recruit students so as to save his job as he was constantly absent from school. He said the acceptable ratio is 1 to 14 per teacher. Anything less than 14 learners per music subject teacher was unacceptable.

ANALYSIS OF ARGUMENT AND EVIDENCE

[19] The dispute in essence amounts to whether, on the facts of the matter, the applicant has discharged the onus of proving that the termination of his contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.

[20] In terms of Section 186(1)(b)(i) and (ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of 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 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.

[21] It is common cause that the parties entered into a written temporary fixed term contract. The duration of the contract was twelve months. I accept the Applicant’s argument that no written notice was given to him regarding the non-renewal of his contract. However, the Applicant was informed verbally as early as November 2018 that his contract was not going to be renewed. This evidence is supported by a letter the applicant wrote on 19 November 2018 requesting intervention and reasons as to why his contract was not going to be renewed. It is my finding that the Applicant was timeously notified that his fixed term contract was not going to be renewed. I reject the Applicant’s argument that he had three learners to teach for the year 2018. The reason for my rejection is because the Applicant failed to present documentary evidence that showed that he had three learners to teach for year 2018. The Applicant also failed to call these learners as his witnesses to come and corroborate his testimony. It is my finding that two of the Applicant’s learners were not students from feeder Schools but were adults from the community. It is my finding that the recruitment of these two adults by the Applicant was in contravention of the Magnet School Policies and Procedures. It is further my finding that the Applicant had only one learner to teach for the whole year of 2018. It is therefore my finding that the reasons advanced by the Respondent for the non-renewal of the Applicant’s contract is, “it was not sustainable to allow a teacher to teach only one learner for the whole year and such was a wasteful expenditure”. This is a compelling argument.

[22] The Applicant failed to adduce evidence that proved that he had a reasonable expectation that his contract would be renewed.

[23] In NUM obo Mpaki vs. CCMA & Others JR 1983/2014 the Court held that the second part of the inquiry into a reasonable expectation is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The court identified a number of factors, which may influence such a finding, namely (a) agreements (b) undertakings by the employer, (c) custom or practice in regard to renewal, (d) the availability of the posts, (e) the purpose or reason for conclusion of the fixed term contract, (f) inconsistent conduct, (g) failure to give reasonable notice, (h) the nature of the business. The list is not exhaustive.

[24] In view of the above analysis, it is my finding that the Applicant has failed to discharge the onus of proving that the termination of his contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.

AWARD

[25] It is my finding that the Applicant was not dismissed but his temporary contract of employment came an end due to the effluxion of time.
[26] The Applicant is not entitled to any relief.
[27] The Applicant’s dispute referral is dismissed.

ELRC PART-TIME PANELLIST: PAUL PHUNDU