Case Number: ELRC812-23/24GP
Commissioner: Vusi Moyo
Date of Award: 21 August 2024

In the ARBITRATION between

Dzagana, Fulufhedzani Fridah APPLICANT

And

Tshwane North TVET College RESPONDENT

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award issued in terms of Section 138(7)(a) of the Labour Relations Act 66 of 1995 as amended (hereafter referred to as “LRA”).

2. The matter was set down for an arbitration process in terms of Section 191(5)(a) of the LRA. The arbitration hearing was held for five days under the auspices of the ELRC.

3. The Applicant was in attendance and was represented by Mr Osborn Siebani, an Attorney. The Respondent was represented by Ms Reginah Mogami-Habedi, a Labour Relations Official. These proceedings were conducted in English. Submissions were both digitally and manually recorded.

ISSUE TO BE DECIDED

4. The issue to be decided is whether the Applicant was dismissed when her fixed term contract was not renewed. If so, was the dismissal both substantively and procedurally fair or not.

RELIEF SOUGHT

5. The Applicant sought reinstatement as relief for the alleged unfair dismissal in terms of Section 193 of the LRA.

BACKGROUND TO THE ISSUE

6. The Applicant laboured for the Respondent from the 15th of December 2019 – 31 December 2023 on several fixed term contracts as a Lecturer. The Respondent is a state-owned college. Bundles of documents were presented by both parties and the authenticity and veracity of these documents was not disputed.

SURVEY OF EVIDENCE AND ARGUMENT

7. As noted above in paragraph 3, these proceedings were digitally recorded, what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as is relevant for the purpose of this arbitration; it is by no means a comprehensive minute of what transpired in the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:

8. The Respondent party elected to call its witnesses first to testify. The first witness was Ms Patricia Baloyi, the Head of Department. She was duly sworn in and testified under oath as follows:

9. Ms Baloyi testified that the Applicant was employed on a number of fixed term contracts (FTCs). These FTCs were utilized for reasons such as natural attrition, when someone resigns and to close gaps. The Applicant’s first FTC was from August 2019 – December 2019 when Mr Bunu resigned and there was already over-enrolment of students. The Applicant was required as a stand-in. It was made explicitly clear that this was a “contract appointment”.

10. The second fixed term contractual appointment was due to the over enrolment from 2019 that affected 2020. The college needed to close the gap in finding a Lecturer to teach these over enrolled students. The second contract was from 10 February – 31 December 2020 to continue with the students. The offer further stipulated that, “This post is due to over enrolment and should not raise any permanent employment expectations.” The Applicant was allocated these subjects: EBM – Entrepreneurship and Business Management within Financial Management. This was meant to close the gap created by Mr Bunu’s departure.

11. The third FTC was from 08 February 2021 – 30 April 2021 due to operational needs created by over enrolment that extended for 18 months. The college had to wait for enrolment figures before contracting, hence the contract started in February not January 2021.

12. The fourth FTC was from 01 May – 31 December 2021. This was still informed by the over enrolment from 2019. A further gap was created when a Lecturer, Ms Mogale, passed on sometime during June 2021. This led to the fifth FTC.

13. The fifth FTC was from 01 January – 31 December 2022. During this period, there was a reshuffle. The Applicant was allocated to teach Ms Mogale’s subjects, Municipal Administration N5 and N6. The contract was clear that it is a “contract extension”. For same reasons, this was extended to the sixth FTC: 01 October 2022 – 31 December 2023. The college realized in 2022 that there are no funds to pay for the contract extension. Thus, Management approached the Department of Higher Education and Training (DHET) to request assistance to pay staff. This resulted in 14 Lecturers being temporarily migrated to Persal under DHET to assist with payment of salaries until December 2023.

14. From January to December 2023, the subjects differed due to subject allocations. The Applicant refused to teach a subject called New Venture Creation (NVC) and the college elected to conduct reshuffling to avoid contract terminations. New Venture Creation and EBM were used as motivation for the one-year contract extension in 2023 as NVC is a year-long programme. However, the Applicant elected to revert to teaching EBM and Municipal Administration which are 6 months’ programmes.

15. From January 2023 and after reshuffling, the college was faced with the reality that the number of students per subject has dropped. Even after the registration process for 2023 was extended, the target of student numbers was still not reached. Lecturers are required to work a minimum of 25 hours per week. The Applicant and other Lecturers were unable to meet this threshold. This led to the affected Lecturers’ fixed term contracts not being renewed. Prior termination dated 31 December 2023; the Applicant was furnished with a one month “Notice of expiry of employment contract” on the 30th of November 2023.

16. Ms Baloyi attested that there was never a stage whereby the expectation of permanent posts was created. All 6 campuses of the college were affected by non-renewals. The Applicant was not the only Lecturer whose contract was not renewed for 2024. A needs analysis was conducted to determine work allocation for the year. Lecturers that were retained were due to results of the needs analysis. Another Lecturer’s fixed term contract in the same unit with the Applicant was also not renewed. One Lecturer went on to retirement while another was retained to stand-in during incapacity leave. Only two Lecturers were contracted in line with needs of the business unit. The Applicant did not have work allocation, hence she was excluded from the 2024 list.

17. An internal memo titled, “Termination and re-appointment of temporary Lecturers” was issued to address this matter. The Principal also addressed the matter.

18. Ms Baloyi specified that the college projected 180 students for 2024. For Financial Management the projected figure was 120 students but the college received 40 for first semester and only 13 students for second semester. Due to this low figure, students had to be relocated to other campuses.

19. Ms Baloyi made it clear that she never promised a permanent position to the Applicant.

20. Under cross examination Ms Baloyi affirmed that the HOD determines integration based on operational requirements not the DHET. The DHET does not dictate on operational requirements. The college contracts Lecturers based on work allocation and number of students. There was over enrolment when the Applicant was contracted.

21. When challenged on the contents of HR Circular No. 30 of 2020 Ms Baloyi responded that the Applicant party is not the author of the document therefore their interpretation of the document might differ; and the Applicant has no knowledge of the background thereof.

22. Ms Baloyi conceded that the Applicant was offering a Ministerial programme, same as all Lecturers. On HR Circular 40 of 2020, Ms Baloyi responded that it was meant for only those who are legible. The Applicant was not legible as she was not contracted under PPN but was specifically contracted for over enrolment reasons. Ms Baloyi maintained that the college complied with the Circular. Later, she clarified that the Circular does not speak to the numbers that the college is funded for.

23. Ms Baloyi was firm that the college cannot extend the contract of someone that has no work to do. On funding she explained that the college was already operating at 63% threshold on salaries, thus the college had no funds to pay the 14 Lecturers that were migrated temporarily to DHET. During this migration period, these Lecturers were paid by DHET.

24. Ms Baloyi maintained her stance when it was put to her that her submission that there were consultations held by Senior Lecturer with the Applicant were hearsay.

25. On appointments, Ms Baloyi quoted from the advertisement that, “The college reserves the right not to appoint.”

26. On re-examination, Ms Baloyi affirmed her testimony that Circular 30 and 40 have nothing to do with the Applicant as she was contracted due to over enrolment. Furthermore, no Circular can force renewal of contracts when student numbers have gone down.

27. The second witness for the Respondent was Mr Thamsanqa Thambe. He was duly sworn in and testified under oath as follows:

28. Mr Thambe is appointed as Assistant Director: Curriculum Implementation. He testified that Circular 30 and 40 are moratoriums about current cohort of Lecturers whose employment contracts should not be terminated. The end of PPN was on the 31st of March 2024. By then, the college had already exceeded the 63% threshold whereas the memos were meant for institutions below 63 %. Mr Thambe affirmed that the college applied justice in interpreting the memo. When referred to the phrase “all staff” in the document, he argued that this was applicable to concession Lecturers mainly from Engineering.

29. With regards to fixed term contracts, campuses are required to submit their workloads as part of motivation. He testified that enrolments are determined by the demand based on learner ratio.

30. Mr Thambe is the author of the Memo entitled, “Request to renew and issue notice on the end of contract for Lecturers…” The list of Lecturers whose contracts were renewable was based on workload/ needs/ operational requirements. The Applicant’s name was cited in the “List of non-renewable for contract 2024”. In the document, the reason for non-renewal is stated “No full complement of the workload.” The Applicant was not cited on the list of temporary Lecturers.

31. Mr Thambe affirmed under cross examination that prior issuance of the memo, he consulted with all campuses. On Circular 40, Mr Thambe responded that paragraph 1 does not apply to the Respondent as they were already above 63 % threshold and thus could not absorb anyone. Mr Thambe responded directly to the Applicant’s representative that his interpretation of the Circular is wrong and that the Respondent complied with same.

32. Mr Thambe made it clear that it is unfortunate that the Applicant did not have a workload as they did not have sufficient students and thus there were no funds to pay her to extend the contract. There were 14 FTCs that were not renewed.

33. The third witness was Ms Josephine Mmapula Nyalungu. She was duly sworn in and testified under oath as follows:

34. Ms Nyalungu introduced herself as a Recruitment and Selection Officer. Her duties were duly outlined. She corroborated the employment of the Applicant on a fixed term contract and notice issued at expiry thereof. She clarified that fingerprint checks are not done for permanent employees only.

35. Ms Nyalungu testified that the Applicant’s appointment was not part of the PPN structure. Thus, Circular 30 is not applicable in her case. The Applicant’s post was also not a funded post. Permanent employees were also prioritized and there was also an over subscription thereof. The over subscribed employees had to be declared to the DHET and placed at other colleges.

36. On ring-fencing, Ms Nyalungu explained that this is only applicable to employees in PPN posts. Non- funded posts, such as the one held by the Applicant, could not be ring fenced.

37. Under cross examination, Ms Nyalungu was steadfast that the Applicant did not fall under PPN model as her post came due to over enrolment. This meant that it is a post that was paid for by the college as it is an additional post whereas PPN structures are paid for by DHET. The post was created so that students cannot suffer due to PPN.

38. Ms Nyalungu attested that contracts for Lecturers who did not have a workload were not renewed. She was firm that the college understood the Circulars hence there was no need to call anyone. Furthermore, there was no contradiction with the Principal’s memo.

39. On expectation of contract renewal, Ms Nyalungu attested that there was no expectation created as stated in all contract extensions.

40. The Respondent closed its case and the Applicant testified as a sole witness for her case. She was duly sworn in and testified under oath as follows:

41. The Applicant testified that she was employed on the 15th of August 2019 as a Contract Lecturer for Financial Management under Business management Unit. She started teaching Public Law, then Entrepreneurship and Business Management which fell under Public Management. She understood that she was hired because Mr Bunu had resigned. This was a permanent post and it was advertised in 2020. The Applicant duly applied for same. However, the post was later frozen in 2021 due to the PPN programme.

42. In 2022 the Applicant was informed that she is now migrated to DHET as she will no longer be paid by the college payroll. At the time, she was aware that there were three other Lecturers on contracts. They were all given GEPF forms to complete. The Applicant asked about the 37% and was informed that it has something to do with absorption. However, on the 01st of November 2023 she received a “Notice of expiry employment contract…”

43. The Applicant then described what she went through from the time that she signed the notice and the Officials she spoke to who appeared equally confused until matter was referred to the ELRC.

44. The Applicant testified that she believed that her job was safe until 31 March 2024 when the PPN comes to an end.

45. The Applicant asserted that the Circular did not mention enrolment numbers. She went to consult because she was not included in the work allocation when there were many students for her subjects. She attested that she was informed of the numbers in Financial Management but was confused because she had been teaching Public Management since she was hired. When Ms Mohale passed on in 2021, she was asked to step in and teach Municipal subjects. Bundle B pages 33 – 35 and 40 shows the class attendance registers where she was teaching EBM N4 for Public Management. She affirmed that there were no Financial Management subjects.

46. The Applicant led evidence on changes made on subjects in 2022 and concerns raised by Lecturers at the time. She could not remember saying that she will not teach New Venture Creation subjects as she used to step in whenever she was required to do so.

47. The Applicant was of a firm view that she was one of the Lecturers offering Ministerial programmes and would remain so until the PPN is completed on the 31st of March 2024. Unfortunately, her contract was terminated on the 31st of December 2023.

48. The Applicant responded under cross examination that she was employed in 2019 on a fixed term contract due to resignation of a Lecturer. She conceded that was over enrolment of students during her tenure. The title of the appointment letter signed by Applicant in 2019 as well as on 12/02/2020 is: Contract Appointment post of: Financial Management Lecturer. It explicitly stated as follows: “NB: This post is due to over enrolment and should not raise any permanent employment expectations.” The Applicant conceded that the subjects she taught were based on operational needs of the campus.

49. The Applicant explained that her understanding, and allegation of her dismissal is based on contents of Circular 30 and 40 because she believed that she was part of the PPN programme. Her understanding was that PPN included Lecturers on contract until 31 March 2024. When challenged that her post had nothing to do with PPN, the Applicant expressed her surprise as she was hearing this for the first time at arbitration. The Applicant attested that the Principal never mentioned this nor were enrolment numbers ever discussed with her.

50. The Applicant expressed her understanding that PPN is when the college places Lecturers where there is a need or move them to other colleges. The Applicant stated that she is not aware that the PPN is a structure of the college not DHET. She further articulated that she does not know that PPN is a new model for permanent posts. She opposed the Respondent’s submission in that the Circulars referred to contract/ permanent or not being paid by college/ DHET.

51. The Applicant conceded that she was employed by the college council. However, she was taken aback by the Respondent’s submission that the college council is mandated to make temporary appointments based on operational requirements only whereas permanent appointments are made by the DHET. She responded that this was never explained to her in this manner.

52. The Applicant admitted that the FTCs she signed never mentioned anything related to absorption. The Applicant respondent in the affirmative when asked whether renewals are based on operational needs as well as the reality that the moment there is no longer an operational need, the contracts cannot be renewed.

53. The Applicant assented that the GEPF application was never implemented as the 37% deduction was never made.

54. The Applicant attested that she was excluded by Ms Baloyi on work allocation as this is handled by the Senior Lecturer, not HOD. The Applicant’s concern was that there was no focus on Public Management student numbers.

55. The Applicant party elected to close its case and abandoned its course to subpoena the author/s and Officials involved in implementation of the respective Circulars.

56. Closing heads of argument were submitted in writing by both parties.

ANALYSIS OF EVIDENCE AND ARGUMENT

57. I shall refer only to salient points in the evidence for this analysis.

58. In University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) the Labour Appeal Court held that the test for reasonable expectation was two-fold. They first dealt with whether the employee actually expected the contract to be renewed and the second, whether the expectation was reasonable.

59. In casu, it is common cause that the Applicant started as a Contract Lecturer and her contract was terminated while working in the same contract position. Her status from being fixed term was never changed and was explicitly agreed to in all fixed term contract extensions. For this reason, it is clear that the renewal that she expected to run until 31 March 2024 was self-created. This was not an expectation created by the college. Hence, there is no single Official cited as the person that created the expectation formed by the Applicant. Neither is there an event by the college that created the expectation.

60. The Applicant attested that she derived an expectation of renewal from two Circulars issued by the DHET. However, in her evidence she failed to make concerted efforts to ensure that the responsible DHET Official/s are subpoenaed to testify on the interpretation of their Circulars.

61. I find it that the Applicant party placed itself in an elevated and condescending tower in believing that it has the sole correct interpretation of the Circulars above the HOD, AD of Curriculum Implementation and the Recruitment & Selection Officer without any input from the authors of the document. In any case, this was a red herring. The Respondent’s witnesses emphasized that the PPN structure excluded the Applicant as she was not in a funded post. This was further corroborated by evidence that she was on the college payroll until the college ran out of funds and sought assistance at the DHET. It is on this basis coupled with the exceeded 63% threshold that I find it compelling that the Circulars did not find application in her case. It would also create an absurdity to ‘ring fence’ a non-funded post.

62. Of the essence is the underlying reality that in the absence of an expectation being created specifically by the college( Bening the Respondent in this matter), the Applicant party elected to rely on an external documents from the DHET and opened a superficial debate about the interpretation thereof. The causal fact is that this matter was not referred as an interpretation and application dispute but rather an unfair dismissal dispute emanating from the non-renewal of a fixed term contract in terms of section 186(1)(b) of the LRA. There is no evidence that the Respondent created an expectation of the desired renewal. I find that the Respondent’s witnesses were credible and reliable as they provided clear corroboration without hesitations nor material contradictions.

63. At all material times the Applicant was never presented with a promise of permanency nor renewal of the FTC. A month before the end of the contract, due notice was given. Given the totality of circumstances, this should have been the end of the matter as there was no reasonable expectation created by anyone at the higher echelons of the college.

64. The Applicant was unreasonably obstinate in this regard as the Circulars have to be equally read with economic realities of the college. It was never disputed that the college had no funds, hence assistance had to be sought from the DHET until termination of the FTC. Any continuation from January – March 2024 would have had neither state funding nor revenue from student fees.

65. In NUM obo Mpaki v CCMA and others (JR 1983/2014) (2016) ZALCJHB 354 (handed down on 9 September 2016) the Labour 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 post;
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.

66. In this case, it is clear that the extension issue is pushed aggressively and solely by the Applicant, no one else as there were no agreements/ undertakings/ customs/ practice to renew when there was no workload to justify such a decision. The low number of students dispels the purpose and possibility of a Contract Lecturers’ post. The Applicant is undoubtedly imposing herself on an organization that does not have funds to pay her salary. The formation of a reasonable expectation was manifestly self-imposed and erroneous as there were 14 Lecturers whose contracts were not renewed. There was no inconsistency on the Respondent’s part. The Applicant was fully aware that she was always on a fixed term contract. Nothing to the contrary was ever communicated to her throughout her tenure. She mistakenly formed a conclusion of an extension by mere conjecture from Circulars in spite of clear notice to the contrary.

67. Ms Baloyi was not challenged on the shrinking numbers of enrolled students that she presented nor was she confronted with the numbers of students in Public Management. The version of numbers of Public Management students vs Financial Management students was not put to the Respondent’s witnesses. For all its worth, this comparison was never tested. Consequently, there was no evidence to conclude that there was still sufficient work for the Applicant at the college.

68. The Respondent’s witnesses proffered cogent reasons on why the Applicant’s contract could not continue. In this case, the fixed term contract was at all material times bona fide. The genesis of the Applicant’s employment is a fixed term contract. The evidence before me is clear that this was never changed. I find the Applicant’s interpretation of the Circulars to be disingenuous and misleading. None of the Respondent’s officials created any reasonable expectation of renewal or extension. The Applicant erroneously manufactured the entire narrative of a forthcoming extension.

69. The Applicant failed to establish an objective basis for her expectation of a continuation of the fixed term contract and essentially did not succeed in passing the objective reasonable expectation test enunciated in SA Rugby v CCMA & others [2006] 1 BLLR 27 (LC) and De Milander v MEC for the Department of Finance: Eastern Cape (2013) 34 ILJ 1427 (LAC); [2014] JOL 31613 (LAC).

70. The conclusion is thus inescapable, there was no dismissal in this matter. I therefore present the award as follows:

AWARD

71. The Applicant was not dismissed by the Respondent.

72. The claim of unfair dismissal due to non-renewal of a fixed term contract is dismissed.

73. I make no order as to costs.

Dated and signed on the 21st day of August 2024.

Vusi Moyo
ELRC Commissioner