In the matter between
PORTIA MVAMBI APPLICANT
and
PROVINCIAL DEPARTMENT OF EDUCATION: NORTH WEST RESPONDENT
ARBITRATOR: KENNETH DLAMINI
HEARD: 02 DECEMBER 2021
CLOSING ARGUMENTS: 21 DECEMBER 2021
DATE OF AWARD: 10 FEBRUARY 2022
AWARD
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was part-heard virtually on 25 November 2021, 27 November 2020 and on 01 December 2021. It was finalized on 02 December 2021.
2. The Applicant, Ms Portia Mvambi was present and represented by Mr Fezile Dengane, an Attorney from FT Dengane Attorneys from East London. The Respondent, Provincial Department of Education, North West Province was represented by Mr Martin Keetile, the Respondent’s Employment Relations Practitioner.
3. The proceedings were manually and digitally recorded. All witnesses testified under oath.
ISSUES TO BE DECIDED
4. Firstly, I am required to determine whether the Applican had a reasonable expectation for the renewal of her fixed term contract and/or for permanent appointment. Secondly, whether the termination of the Applicant’s fixed term contract constituted a dismissal or not. If dismissal is established and the reasonable expectation is proven. I am then required to determine the appropriate relief. The relief sought by the Applicant is retrospective re-instatement in terms of section 193 of the Labour Relations Act 66 of 1995 (the Act) as amended. The Respondent’s position is that the Applicant was not dismissed, but Applicant’s fixed-term contract came to an end.
5. The Applicant is seeking re-instatement and outstanding salary for the month of May, June, July, August, October, November and December 2021 and to be permanently appointed by the Respondent. The position of the Respondent is that the Applicant was never dismissed, but the Applicant’s fixed-term contract came to and end on 30 April 2021.
BACKGROUND TO THE DISPUTE
6. The Applicant had been employed on a temporary capacity or on a fixed term contract as an educator PL1 against a promotional post PL3 at Arefadimeheng High School following the resignation of the Deputy Principal at the School. The Applicant had earned a basic monthly salary of R 23, 336, 20.
7. Aggrieved by the termination of her contract, the Applicant referred a dispute to the Council on 11 June 2021. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT’S EVIDENCE
8. The Applicant testified herself and did not call any witnesses. Bundle A, pages 1-6 were submitted in support of the Applicant’s case. The Respondent called only one witness and further submitted Bundle B. pages 1-5 in support of its case.
9. The Applicant, Ms Portia Mvambi testified that she resumed employment with the Respondent on 04 August 2020 as an Educator PL1 at Arefadimeheng High School on a temporal capacity wherein she taught Economics in grade 11 and grade 12 respectively. She stated that she was placed against a promotional post PL3 of a Deputy Principal who had since resigned.
10. From 04 August 2020 she continued rendering her services up until 26 May 2021 without a contract of employment. From August 2020 up until 30 April 2021 she did receive her salary except for the month of May 2021. Her last working day at the school was 26 May 2021 after realising that she had not been paid.
11. During December 2020 the Respondent issued a circular stating that all educators appointed on temporal basis including those occupying promotional posts their contracts will come to an end on 31 March 2021.
12. In February 2021 the Deputy Principal position was advertised and she did not apply for that post. She thereafter enquired from the school Principal as to what was going to happen to her when her contract comes to an end on 31 March 2021. At the time, the school Principal assured her of five available positions within the BCM stream which included economics which she was teaching at the time, business studies, accounting and economic management sciences.
13. During the month of March 2021 two educators joined the B.C.M stream. She again went to the school Principal, and this time the school principal advised her to come back on the 26st March 2021 because the school principal had indicated that he will request a post for her from District Director something which never happened.
14. On 31 March 2021, she received a WhatsApp message from the school principal stating that the District Director did not give him a post. The school principal wished her well in her future endeavours.
15. On 06 April 2021 she went to the District Offices to get her termination Letter. At the District Offices she met with one Lizelle from the salary department who advised her that according to the system her contract had been extended until 31 December 2021. Ms Lizelle even showed her this information from her computer screen but she refused to give her a printout instead she was advised by Lizelle to go to Human Resource Department.
16. Ms Lizelle even told her that in the North-West province educators are permanently appointed after six months. The Applicant stated that Ms Lizelle only gave her a printout confirming that her services had been terminated on 30 April 2021.
17. From the District Offices she contacted the school principal and she informed the school principal about what Lizelle has told her, regarding the contract extension up until December 2021. The school principal wanted to know as to who had told her that her contract has been extended up until 31 December 2021. While talking to the principal, the school principal dropped the phone on her ear. She thereafter sent an SMS to the school principal, and e-mail the next day 07 April 2021, and for which the school principal never responded to.
18. She then decided to consult with her Attorney who wrote several letters of demand to the Respondent. Around 13 April 2021, she personally delivered copies of the letters of demand to the Circuit Office, wherein she met with one Ms S. Moremi who after listening to her story advised her to return to the school of which she did on 15 April 2021 and the school principal accepted her back in service without signing any documentation. She continued to render her services until 26 May 2021, wherein she never received a salary for the month of May 2021.
19. Seeing that she had not been paid her salary for May 2021, she went to the school’s principal to enquire about the non-payment of her salary for May 2021. Upon her arrival to the office of the school principal, the school principal made her to sign an Assumption of duty and Annexure D – forms which had only been signed by the SGB Chairperson and the principal himself.
20. From the office of the school principal, she proceeded to the District Offices wherein she again met with Ms Lizelle who only gave her a printout confirming that her contract had been terminated on 30 April 2021.
21. The Applicant did not dispute the fact that in September 2021 she did receive a salary, but she disputed that the salary in question was a supplementary salary for the month of May 2021 which she did not receive.
22. She again consulted with her Attorney who wrote a letter to the Head of Department, Labour Relations, and to the District Office. Responses were only received from the Head of Department and the Labour Relations Department; no response was received from the District Director.
23. She was thereafter invited to attend a meeting which one Mr Stengane from the Labour Relations Department which she did. Mr Stengane informed her that the school principal was being investigated for bribery allegations and she was also requested to make a statement which she did confirming having paid or given the school principal R1, 500.00
24. The Applicant went on to state that when she received her salary for April 2021, she noticed from her salary advice or payslip that she was now receiving permanent employee’s benefits such as Medical Aid and Pension Fund and that she was in the process of applying a housing allowance. In light of this she argued that she had been made a permanent employee having been with the Respondent for more than six months as from February 2021.
25. The Applicant argued that she believes that she was dismissed by the Respondent and that she had a reasonable expectation that her contract will be renewed and that with effect from February 2021 she had become a permanent employee of the Respondent given that she had been in the employ of the Respondent for a period of six months, she also seeks to be paid the outstanding salary for May, June, July, August, October, November and December 2021.
THE RESPONDENT’S EVEIDENCE
26. The only witness of the Respondent, Mr Leatile Moromane testified he is the School Principal at Arefadimeheng High School since 2013 to date. The Applicant had been appointed on a temporary capacity at the School as a PL1 against a promotional post of a Deputy Principal PL3 who had since resigned.
27. He went on to state that the Applicant started teaching at the school on 04 August 2020 up until 31 December 2020. In January 2021 the Applicant’s contract was renewed up until 31 March 2021.Due to the delay in the recruitment and selection process in filling the Deputy Principal position, the contract of the Applicant was extended from 01 April 2021 up until 30 April 2021. The witness presented the Assumption of duty as well as the Annexure D forms as the requisite administration documentation in support of the Applicant’s employment or appointment for the period in question.
28. He stated that the Assumption of duty and the Annexure D forms were signed by himself as a school principal and by the school governing body chairperson, together with the qualifications and curriculum vitae that they sent to the Circuit office, then to the Sub-district office and finally to the District Office recommending and motivating for the Appointment of the Applicant. He stated that this is the normal process followed. He denied having made any promises to secure a job for the Applicant by any other means including being rude or dropping a phone while talking to the Applicant. Regarding the bribe allegation, the witness stated that he had borrowed or loaned R 1, 500. 00 from the Applicant and for which he did pay it back.
29. Regarding the Deputy Principal position, the witness stated that the newly appointed Deputy Principal joined the school on 03 May 2021 due to the delay of the interviews process. The Applicant’s contract had to be extended from 01 April 2021 up until 30 April 2021. He said the Applicant was aware that her contract will end when the new Deputy Principal assume duty.
30. The witness did not dispute the fact that the Applicant had rendered her services during the month of May 2021. He stated that he was later informed by the district office that the Applicant was entitled to receive her salary for May 2021.
31. He went on to state that he later discovered that the Applicant had been engaging with the district office accusing him of trying to get rid of her, which he denied. Following the appointment of the Deputy Principal there were no further vacancies at the school according to the approved PPM (Post Provision Model).
32. Regarding the Applicant’s claim pertaining to being eligible for medical aid, pension fund and housing allowance, the witness stated that these are benefits for permanently employed Educators and by virtue of her contract the Applicant was not eligible or entitled to such benefits.
33. Regarding the availability of positions within the BCM stream. The witness stated that in March 2021 two available positions were filled. At the time the Applicant was on sick leave and upon her return two Educators had been appointed but not in the Applicant’s position because the Applicant had already been appointed.
34. He denied having any knowledge or having signed any other paperwork beyond 30 April 2021 extending the Applicant’s contract up until 31 December 2021. He said the Applicant was never appointed on a permanent basis. The Applicant had been appointed against a promotional post which was advertised as required and interviews were conducted and the suitable candidate was appointed.
35. Regarding the September 2021 supplementary salary the witness stated that he was not aware that the Applicant received a salary except that the district office had earlier on indicated to him that that the Applicant was entitled to received her salary for May 2021 as the Applicant had rendered her services at the school.
36. The Respondent argued that salary received by the Applicant in September 2021 was a supplementary salary for the month of May 2021 which the Applicant did not receive.
37. The Respondent went on to argue that the Applicant was never dismissed, but she was on a fixed term contract which came to an end on 30 April 2021. The Applicant was never appointed permanently and that promotional posts or position must be advertised and be contested through the normal interviews process.
38. The Respondent’s conversion process to permanence is considered after three months and not six months as alleged by the Applicant and for which it is a separate dispute on its own as an interpretation and application dispute. The Applicant’s claim for re-instatement, salary owed and having a reasonable expectation for either renewal or permanently appointed have no basis and as such should fail.
ANALYSIS OF ARGUMENT AND EVIDENCE
Applicable law
39. 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 her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act and whether the Applicant had an expectation for the contract renewal and/or permanent appointment.
40. In terms of Section 186(1) (a) (b) (i)(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 reasonably expected the employer 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 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.
41. In this matter, it is common cause that the Applicant had been employed on a temporary capacity as an educator from 04 August 2020 up until 26 May 2021. It is also not disputed that the Applicant had no written contract. It is further common cause that the Applicant did receive her salary from August 2020 up until 30 April 2021.
42. It is also common cause that the Applicant had been placed in a promotional post of a Deputy Principal who had since resigned and the post of the Deputy Principal was later advertised and filled and for which the Applicant did not apply for the Deputy Principal position.
43. It is also not disputed that after 30 April 2021 the Applicant continued to render her services during the month of May 2021 up until 26 May 2021 and she was not paid. It is also not disputed that in September 2021 an amount of money equivalent to the Applicant’s salary was paid into the account of the Applicant as a supplementary salary.
44. It is the version of the Applicant that the school principal had promise her a position after the expiry of her contract on 31 March 2021 something which had created a legitimate expectation for a possible extension or renewing of her fixed-term contract at the time. It is further the version of the Applicant that her contract had been extended up until 31 December 2021 and that as from February 2021 she had been permanently employed as she had been with the Respondent for more than six months.
45. The version of the Respondent’s witness is that the Applicant was never appointed on a permanent basis. The witness denied having made any promise to the Applicant to secure a post.
46. No evidence was presented before to establish that the Applicant’s contract had been extended up until 31 December 2021 as alleged by the Applicant.
47. Having had regard to the entire evidence presented before me including credibility and reliability of witnesses, I am persuaded by the version of the Respondent and I have no reason to doubt that it may have been fabricated. It is based on these reasons that I find that the Applicant has failed to discharge the required onus on a balance of probability to established that she was unfairly dismissed by the Respondent including that the she had a reasonable expectation for the renewal of her fixed-term contract on same or similar terms.
48. 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.
49. In view of the above analysis, it is my finding that the Applicant has failed to 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 including the existence of a reasonable expectation of her fixed term contract on same or similar term and not for permanent appointment. The Applicant had been employed on a temporary capacity against a promotional post which was advertised and she never applied. I am also not convinced that the school principal did create a reasonable expectation in this regard.
AWARD
50. It is my finding that the Applicant was not dismissed by the Respondent, her fixed term contract came to an end and no reasonable expectation was created for the renewal of her fixed term contract either.
51. The matter is hereby dismissed.
.
Kenneth Dlamini
Panellist: ELRC