27 June 2022 – ELRC347-21/22 KZN

IN THE ELRC ARBITRATION
BETWEEN:
MHLANGA INCORPORATED obo NDLOVU THEMBINKOSI VICTOR “the Applicant”
and
DHET “the Respondent”

ARBITRATION AWARD

Case Number: ELRC347-21/22 KZN
Last date of the ruling: 30 May 2022
Date of the ruling: 13 June 2022
ELRC Arbitrator: Lindiwe Makhanya

DETAILS OF HEARING AND REPRESENTATION

1. This arbitration commenced on 05 November 2021, and after several sessions was finalised on 30 May 2022. It was held virtual under the auspices of the Education Labour Relations Council (“the council”) ELRC in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).

2. The Applicant, Mr. Thembinkosi Ndlovu, was represented by Mr. S. Hlongwane, an Attorney from Mhlanga Incorporated, and the Respondent, Elangeni Tvet College, was represented by Mr. N. Mkhize from Labour Relations. The proceedings were digitally recorded.

PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED

3. No jurisdictional issues were raised.
4. I am required to decide whether the Applicant had a reasonable expectation that his fixed-term contract would be renewed on the same or similar terms and if so, whether the dismissal was fair and if unfair, determine the appropriate relief.

BACKGROUND TO THE DISPUTE

5. The Respondent is Elangeni Tvet College located in KwaZulu Natal. The Applicant commenced his employment with the first Respondent on 16 March 2015 as a Lecturer. The Applicant earned R31,971.00 at the time of termination of his contract.
6. The Applicant was employed on several successive fixed-term contracts from 2015 until 2020 when his contract was not renewed. The Applicant contended that the Respondent dismissed him when he had reasonable expectation to have his contract renewed or be employed permanently. The Respondent contended that there was no reasonable expectation created.

SURVEY OF EVIDENCE AND ARGUMENT

7. Only the Respondent submitted a bundle of documents. I will refer to this bundle as a “common bundle”.
8. The Applicant submitted his written closing arguments on 07 June 2022 but the Respondent did not submit it until the award was submitted to the Council on 15 June 2022.
9. The following is a summary of the relevant evidence led by the parties. It is not intended to be exhaustive; however, I have considered all the evidence led and arguments submitted in reaching my decision.

THE APPLICANT’S CASE

10. Mr. Thembinkosi Victor Ndlovu testified that he applied for a permanent position after the advertisement was publicized, he was appointed on 16 March 2015 as a Lecturer. He referred to page 39 of the bundle where his letter of appointment is found. According to him, he was appointed permanently as his contract did not state that he was appointed on a fixed-term contract.
11. He further testified that clause 2.2 of his contract of employment states the termination date, which is 31 December 2015, but at the time of signing this contract, he did not see the clause as he was not given an opportunity to read it. He was shocked when he received a termination letter on 31 December 2015. He was called back at the beginning of 2016 and was given another contract of employment which was also terminated at the end of the year that was when he enquired from the hr department but after not getting any joy, he referred his dispute to the CCMA and was later reinstated on a fixed-term contract and was promised to be given a permanent contract at a later stage.
12. He later enquired from Ms. Nkosi in the HR department about the permanent position that the Respondent had promised him, but Nkosi informed him that the Respondent was in a process of making him a permanent employee. He continued on a fixed-term contract until 2019 when he was given a termination letter. In 2020, he returned on another fixed-term contract but the campus manager came to inform him that the college had ghost employees and rumours of bribery by other lecturers therefore it was necessary to clean the system which meant that there would be termination of contracts and thereafter the positions would be readvertised.
13. He was assured by Nkosi not to worry about the termination of his contract as he was to be appointed to a permanent position. In 2020 he applied for seven positions but was only shortlisted for one position which he was not successful. He had expectations to be appointed permanently as the Respondent kept on renewing his contracts. He was the only Lecturer who was trained to do prevocational mathematics and science as there was no one teaching these courses. There was no reason for the Respondent to terminate his contract of employment because in 2020 he got 100% passes for mathematics in his class.
14. Under cross-examination, he conceded that Mdletshe was the successful candidate for the KwaMashu position which he had initially applied for in 2015 and that he was scored the 4th candidate in an interview. He also conceded that in March 2015 he was appointed to the fixed-term contract position for the Ndwedwe campus which he had not applied for.
15. He said Shezi, the former HR manager had offered him a mechanical engineering position but he was not suited, but a 100% pass rate gave him an expectation of continuous employment also the actions of the Respondent suggested that he was needed over the years as his contract was being renewed.
16. During re-examination, he maintained that he was not given a letter of regret for the position that he initially applied for in 2015 and was not informed who was the successful candidate for the position.
17. He also maintained that he did not apply for the position at the Ndwedwe campus where he was eventually placed in 2015 but was adamant that the 2015 post which he initially applied for played a crucial role in this case because he had lodged a dispute at the CCMA whereby he complained that he was hired on a permanent post but was placed on a different post, as a result, he was re-employed but the Respondent did not initiate the process of making him permanent thereafter.

THE RESPONDENT’S CASE

18. Mr. Senzosini Shezi is employed by the Respondent as a Deputy Principal Corporate Services and the Human Resources department reports to him. Between 2015 and 2017 he was employed as Human Resources Manager.
19. He referred to page 55 of the bundle where there is a job advertisement for a PI Lecturer at the KwaMashu campus and page 53 of the bundle are the minutes for the interview process where the Applicant was ranked the 4th candidate, M. Mdletshe was recommended as the successful candidate for this position.
20. He stated that in 2016 when the Applicant had referred a dispute to the CCMA, the ruling was in the Respondent’s favour. Between 2015 to 2020 the Applicant was employed on a fixed-term contract. He referred to page 13 of the bundle where the notice of termination of the contract for 2020 is found. He explained that the reason for the non-renewal of the Applicant’s contract was because in 2020 the Respondent learnt that there were lecturers who were employed on a contract basis but had been appointed irregular and there were ghost employees in that some of those employees were not suitably qualified for the positions which they occupied. The appointment of the Applicant at the Ndwedwe campus fell under the irregular appointment because he was never interviewed for this position and the position was never advertised. There were engagements with the Labour forums as seen in the minutes of the meeting on page 24 of the bundle where NEHAWU and SADTU were in attendance to find a way forward, after the Respondent had completed its investigation, it was agreed that the process had to start afresh. Positions that were identified as irregular appointments were advertised, interviews were conducted and successful candidates were recommended to resume duty in 2021
21. He pointed to page 57 of the bundle where there are minutes of the interview process dated 24 December 2020 for post-HRM 116/ 2020, the Applicant was shortlisted but he was not successful in this position.
22. He was not aware that Ms. Nkosi from the HR department had engaged the Applicant by indicating that the advertisements for the positions would be a formality and that he would be appointed permanently thereafter. He said the Respondent wanted a fresh process to ensure that it had suitably qualified candidates for the positions.
23. Although the Applicant claimed that he had achieved a 100 per cent pass in mathematics he could not confirm this but stated that performance was not a criterion that was used during the interviews in 2020 and the Applicant was not the only employee of the Respondent that had been sent to such training.
24. Under cross-examination, he conceded that the Applicant may not have been furnished with a regret letter for the 2015 permanent position which he had applied for, but on the advertisement, it is stated that if the applicants have not been contacted after a certain period, they need to consider their application as being unsuccessful.
25. He reiterated that the Applicant did not apply for the position at the Ndwedwe campus but he was offered that position.
26. He explained that the reason why the Applicant was offered the Ndwedwe position when he had applied for the KwaMashu position was that the Ndwedwe position also became available whilst they were busy with the KwaMashu position, the practice was that they would check in their pool to find candidates who had applied for a similar position on a permanent position which was the reason the Applicant was offered a fixed-term contract at Ndwedwe as he had been ranked the 4th candidates in another interview. He had recommended the Applicant; his understanding was that the fixed-term contract was explained to the Applicant by the Human Resources Officials.
27. He did not dispute that the letter of employment offer does not indicate the nature of the contract but the contract of employment which was later given to the Applicant stipulates the terms of contracts as the clause in a contract has a start date and an end date.
28. He was not specific in his answer when asked if the Applicant was given a contract of employment for 2016 but said as the Applicant continued to work for the Respondent it meant that he had been given a contract of employment. He insisted that although there may be no contract for the other periods the termination letters for 2019 and 2020 suggest that the Applicant had been given a fixed-term contract at the beginning of the year.
29. When it was put to him that where an employee works without any contract of employment that employee is deemed to be employed permanently, he stated that the Applicant’s contract of employment spelt out that he was employed on a fixed-term contract. He could not confirm if there was no contract of employment for 2020 because there were irregularities in the hr department and all the Officials who were involved were dealt with by the Respondent.
30. He insisted that the dispute that was lodged at the CCMA was in favour of the Respondent but no award was issued.
31. He did not know of any discussion between the Applicant and Ms. Nkosi where the Applicant was promised to be retained permanently. According to him, the Respondent had no policy where an employee may move from being employed temporarily to a permanent basis.
32. He disputed that the Applicant was employed permanently.
33. During the re-examination, he reiterated that the Applicant applied for the permanent position based at the KwaMashu campus but was appointed for the fixed-term contract at the Ndwedwe campus start date being 16 March 2015 until 31 December 2015. The Applicant was not given an appointment letter for the KwaMashu campus.

ANALYSIS OF EVIDENCE AND ARGUMENT

34. I have taken note of section 186(1)(b) (i) of the LRA, which states that dismissal means that 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.
35. The onus to prove that the dismissal occurred in circumstances where the employee had a reasonable expectation that the fixed-term contract would be renewed at the end of its period rests with the employee.
36. It was common cause that the Applicant was initially employed by the Respondent in March 2015 when he signed a fixed-term contract with an end date being 31 December 2015. It was also common cause that the Applicant continued to work on various fixed-term contracts until 31 December 2020.
37. The Applicant argued that he had an expectation for the renewal of his contract however the Respondent disputed the Applicant’s claim by stating that the Applicant had no legitimate expectation to have his contract renewed.
38. At the outset, it is important to mention that at the beginning of this arbitration when parties narrowed down the issues, the Applicant stated that he wanted the council to declare that he had a legitimate expectation to have his contract renewed or to be employed permanently. During the Applicant’s testimony, a major part of his evidence was that he expected to be appointed to a permanent position because when he was initially appointed in March 2015, he was appointed in a permanent position but the Respondent had placed him on a fixed-term contract position. It must be noted that the crux of the matter in this dispute is whether the Applicant had a reasonable expectation for his fixed-term contract to be renewed on the same or similar terms. It is trite law that dismissal in terms of section 186(1)(b)(i) of the LRA is confined to determining whether there was a reasonable expectation that a fixed-term contract should be renewed and does not include an expectation about permanent employment on the expiry of a fixed-term contract. Therefore, any contention by the Applicant that he had a reasonable expectation of permanent employment on the expiry of his contract falls outside the ambit of section 186(1)(b)(i), a reasonable expectation of a prospect of permanent employment is not a factor that can be considered under this section. I have no jurisdiction to entertain the prospect of permanent employment. I will therefore deal with evidence which is relevant to establishing the existence of a reasonable belief in the expectation of a renewal of the Applicant’s fixed-term contract on the same or similar terms.
39. The Applicant’s contract was rolled over for six consecutive periods from 2015 until 2020 when his contract was not renewed. The Applicant was of the view that the action of the Respondent suggested that his contract would be renewed in 2020. It is generally believed that if a fixed-term contract is rolled over or renewed over a long period like in this case, the Applicant may have an expectation that the Respondent will continue to renew the contract. However, it is imperative to look at the approach that the Labour court adopted in Member of the Executive Council for the Department of Finance Eastern Cape v De Milander & Others (2011) 32 ILJ 2521 (LC), the court held that a dual enquiry is conducted in determining the existence of reasonable expectation. The first enquiry is subjective and entails enquiring into the subjective basis upon which the person who claims reasonable expectation relies in contending that his or her contract ought to have been renewed. The second enquiry entails determining the existence of such an expectation based on the objective facts that existed prior to the termination of the contract. It must be determined whether a reasonable employee in the same circumstances as the employee would have expected the contract to be renewed on the same or similar terms.
40. Firstly, the Applicant argued that the repetitive renewal of his contracts gave him expectations that his contract would be renewed, his performance which was a 100 per cent pass rate and the prevocational training that he had attended suggested that his contract would be renewed in 2020. The Applicant also claimed that his discussions with Ms. Nkosi created reasonable expectations of permanent employment. The Respondent, on the other hand, rejected the Applicant’s version claiming that performance was not part of the criterion that was used during the interviews in 2020. I accept the Respondent’s argument that the Applicant’s performance could not be used as a ground for a reasonable expectation of having his contract renewed, more so because the evidence of Shezi that the Respondent had no policy of converting temporary employees into permanent employees without following the process was not challenged. The Lecturers positions were later advertised, and the Applicant was given an opportunity to compete with other candidates. It cannot be said that the Applicant would have been made a permanent employee without attending the interviews. Also, the Respondent’s version that the Applicant was not the only employee who had attended training was not disputed therefore the Applicant could not rely on this factor as the existence of reasonable expectation. I note that Ms. Nkosi was not called by the Applicant to corroborate his version that he was to be employed permanently. The Applicant did not state the reasons why Ms. Nkosi was not available to testify. In Tshishonga v Minister of Justice and Constitutional Development and Another (2007) 28 ILJ 196 (LC) it was held that an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the facts as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or even damage his case. In this case, I reject the Applicant’s claim that Nkosi had promised him permanent employment as Nkosi was not called as a witness.
41. It was not disputed by the Respondent that the Applicant had several contracts which were rolled over however the Respondent claimed that in 2020 the Applicant’s contract could not be renewed because of the irregularities that had been identified, Labour forums were invited and together with management decided to advertise all the affected positions including the one the Applicant held. Interviews were conducted but the Applicant was unsuccessful.
42. Another important factor that needs to be objectively considered is whether the fixed-term contract is capable of being renewed, it was not so in this case because when the Respondent corrected the irregular appointments in 2020 by deciding to advertise the positions to allow suitably qualified employees to be appointed, the Applicant was invited for an interview for the permanent position but he was unsuccessful. It was not disputed by the Applicant that all Lecturers who were on a fixed-term contract had their contracts terminated and the positions were advertised. The Applicant’s situation was on par with other Lecturers and, for similar reasons, he could not have expected that his contract would be renewed under the circumstances. The Applicant failed to pass the objective test in that a reasonable person in a similar situation would not have had a reasonable expectation that his contract would be renewed because the position that he held was no longer capable of being renewed after the successful candidate was appointed permanently.
43. The factors placed by the Applicant when objectively considered did not in my view establish a reasonable expectation to have his contract renewed because when one considers the circumstances at the time of termination of his contract, it was established that the position that he held fell under the irregular appointment which he did not dispute, the Applicant was never interviewed in the position he held instead he was offered a contract of employment for the Ndwedwe campus, whereas he had been interviewed for the KwaMashu position where he was not the successful candidate. Therefore, it cannot be said that he had a reasonable expectation to have his contract renewed when the position was no longer capable of being renewed. The Applicant has failed in establishing the fact of his dismissal dispute under section 186(1)(b)(i).
44. In light of the above, I am satisfied on a balance of probabilities that, the Applicant failed to establish that he had a reasonable expectation to have his fixed-term contract renewed on the same or similar terms and accordingly the failure of the Respondent to offer him another contract did not amount to dismissal.
45. I find that the Applicant failed to establish a dismissal. Therefore, the Council lacks jurisdiction to hear the matter.
46. I, therefore, make the following award;

AWARD

47. The Applicant has failed to prove that he was dismissed in terms of section 186(1)(b) (i) of the LRA.
48. The Council lacks jurisdiction to hear the matter.
49. The application is hereby dismissed.

LINDIWE MAKHANYA
PANELLIST