In the matter between:

SADTU obo CS BASI and Others Applicant

and

ELANGENI COLLEGE FOR FURTHER EDUCATION AND

TRAINING Respondent

ARBITRATION AWARD

Case Number: PSES 019-09/10KZN

Date of Award 4 November 2011

KC Moodley

Arbitrator/Panellist

Education Labour Relations Council

261 West Avenue , Centurion, 0046

Tel: 012 663 7446

Fax: 012 663 1601

1. DETAILS OF THE HEARING AND REPRESENTATION

The Applicants were represented by Adv J Nxusani, instructed by Attorneys M Magigaba INC. The Respondent was represented by Ms B Bogatsu, an attorney of the firm Garlicke and Bousfield INC. .

2. ISSUE TO BE DETERMINED

The issue to be determined is whether the Applicants were dismissed and if so whether the dismissals were procedurally and substantively fair.

3. SURVEY OF EVIDENCE AND ARGUMENT

The Applicants Case

NOKUTHULA PURITY BALENI (Baleni)

Baleni testified that in 2007 she applied for a lecturing post with the Respondent after seeing an advert in the daily Ilanga newspaper. She was shortlisted, interviewed and appointed as a Lecturer. She was presented with a contract of employment by Senzo Shezi (Shezi), the Respondent’s Human Resources Officer. Shezi informed her that she would be teaching Business Administration and Office Data Processing at the Respondent’s Qadi Campus.

Baleni was employed on a fixed term contract commencing on 28 January 2008 and terminating on 31 December 2008. In October 2008 she received a letter from the respondent informing her that her contract of employment would be extended to 31 December 2009. On 30 November 2009, Baleni received a letter informing her that her contract would expire on 31 December 2009 and that it would not be renewed.

She testified that at the time of signing the original contract of employment, Shezi informed her that her contract would be automatically renewed because of “the new FET process”. Baleni testified that she had been presented with a Duty Load sheet in 2009 for the 2010 academic year.

MBUYISENI SIMON MATHONSI (Mathonsi)

Mathonsi is employed as the Provincial Secretary of SADTU. His duties included the rendering of services to members at FET colleges. The relationship between the union and Mr. Mbili, the rector was initially a cordial one which changed for the worse in 2009. Meetings were held concerning the terms and conditions of employment of union members, including the issues of temporary employment, permanency and benefits. Employees embarked on industrial action. When asked about the proposition that fixed term contracts were not renewed in 2010 because of the introduction of the NCV curriculum, he stated that it was the first time he was hearing of it. He stated that the union had expected the Respondent to have consulted with it prior to terminating the contracts of its members. He stated that he was aware of the Respondent’s contention that part of the reason for not extending the contracts was the enrolment figures for 2010.

Mathonsi viewed the decision to terminate the contracts as mala fide in that it amounted to union bashing.

THANDINKOSI ZEBLON NYAWO (Nyawo)

Nyawo commenced employment with the Respondent in 2008. He was telephoned by Shezi. The Respondent was at the time looking for a lecturer in maths. He was not required to complete an application form or attend an interview. His evidence was that he had signed a contract of employment. When referred to a contract of employment (P253), his evidence was that the signature was not his.

Nyawo was the union site steward at the college and to this end he had discussions with management on the issue of short term contracts. His understanding was that by the end of 2008, management was in discussions with the Council of the Respondent on the issue of making permanent those employees who were on short term contracts. On 1 October 2008 he received a letter from the Respondent informing him that his contract of employment which was due to expire on 31 December 2008, would be extended to 31 December 2009.

Nyawo stated that he was unaware of the issue concerning student numbers as being the reason for the termination of his contract. His is not aware of the reasons why his post was advertized. His view was that his contract was terminated as a result of his union membership and activities. The union had been exerting pressure on Council concerning conditions of employment and permanency of employment of its members. His evidence was that the message conveyed by the Respondent was that “you mess with management you will be kicked out”.

MPHILISI CLAUDE MKHIZE (Mkhize)

Mkhize was employed by the Respondent in 2008 at the Ntuzuma Campus. He applied for the post, was interviewed and appointed. He did not sign a contract of employment. He was informed by Shezi that he would be employed until the end of 2008 and then be made permanent. On 30 November 2008 he received a letter from the Respondent that his contract which was to expire on 31 December 2008 was extended to 31 December 2009. On 5 December 2009, he received a letter advising that his contract would expire on 31 December 2009 and it would not be renewed. He did not apply for the re advertised post.

NDUMISO SIHLE NGCOBO (Ngcobo)

Ngcobo was employed as a lecturer at the Mpumalanga Campus in 2009. He applied for the post, was interviewed and appointed. He signed a fixed term contract of employment and was told not to worry about the content as it was a formality that it reflected a start and end date. The duration of the contract was 9 February 2009 to 31 December 2009. He was also informed by Shezi that he would be made permanent at the end of the twelve months.

He received a letter on 3 December 2009, advising that his contract which was due to expire on 31 December 2009, would not be renewed.

DIRK NKWANYANA (Nkwanyana)

Nkwanyana is a lecturer in General Studies and a permanent member of staff. He is responsible for supervising lecturers in the General Studies Department. He compiles the Duty load for the following year together with the lecturers. He worked on the 2008 and 2009 Duty Load. In relation to the disputed Duty Load sheet for 2010, his evidence was the document could only have been completed after January 2010, thus contradicting the evidence of Baleni, whose evidence was that she had received the document in 2009.

In so far as the staff meeting held on 4 September 2009 is concerned, he testified that “the meeting did not end cordially and formally, it was a disrupted meeting”. The meeting was disrupted because there was no agreement on prioritizing the agenda. In so far as the Council meeting on 15 October 2009 is concerned he stated that he was unaware of what decisions were taken regarding contracts of employment.

THE EMPLOYERS CASE

KNOWLEDGE KWAZINKOSI MBAMBO (Mbambo)

Mbambo is employed by the Respondent as a senior lecturer. He testified on the Duty load for the Qadi Campus for 2010. Mbambo testified that the Duty Load sheet presented by Baleni was not authentic. He stated that the document could not be relied upon as it reflected him being the Construction Material lecturer. He took over the subject in 2010 after four other lecturers had taught the subject. Mbambo presented the Duty Load sheet which he had drafted in 2010.

SENZO SHEZI (Shezi)

Shezi is the Respondent’s Human Resources Officer. His responsibilities include providing assistance to the Human Resources Manager, training and development and recruitment. He drafted the advert for vacant contract lecturer posts at the college for the 2010 academic year. He is also responsible for informing candidates if they were successful and oversees the signing of contracts. He refuted the evidence of Baleni, Nyawo and Mkhize that he had promised them permanent employment. His testimony was that the issue of permanency was “not his call”.

He testified that Baleni clearly understood her contract to be a fixed term contract. Baleni did not object to the duration of the contract at the time of signing. Baleni confirmed receipt of the letter extending her contract to 31 December 2009. He delivered the letter to her and she did not raise any concerns or objections with him.

SIHLE MAXWELL MBILI (Mbili)

Mbili is the rector and accounting officer of the college. His responsibilities include the management and administration of the college. FET colleges are programme based and receive funding from the Department of Education (the Department) based on the programmes and enrollment for the following year. The Further Education and Training Colleges Act No 16 of 2006 (the FETC Act) made provision for the transfer of employees, lecturers and support staff from the Department to the colleges.

At the time of the transfer, the Department was in the process of replacing the NATED curriculum with the NCV curriculum. Level 2 of NCV was introduced in 2007, level 3 was introduced in 2008 and level 4 in 2009. Lecturers had at the time requested to be made permanent. Mbili indicated that this was not possible as the college was programme based and programmes offered depended on enrolment figures. As a compromise he presented a proposal to Council to extend contacts until 2011. Council accepted the proposal and mandated management to take the proposal to employees.

A meeting with the site stewards was called in order to present the proposal before meeting with staff. The representative of SADTU indicated that they were not prepared to discuss the issue as a bargaining unit had been established and that the unit was the appropriate forum where the matter should be discussed. The meeting was disrupted by SADTU and the representatives walked out of the meeting. It was then decided to call a staff meeting in order to present the proposal. A day before the meeting, Nwayo called Mbili to request an amendment to the agenda. Mbili refused to accede to the request. At the meeting Nyawo again raised an issue of prioritizing the agenda. The chairperson refused to amend the agenda as the meeting was called to share information. Nyawo disrupted the meeting. Staff walked out and the meeting was cancelled.

Mbili reported to Council on the meetings and Council rescinded the proposal concerning fixed term contracts.

Mbili testified that he had no vendetta against SADTU and did not victimize SADTU members.

4. ANALYSIS OF EVIDENCE AND ARGUMENT

The Applicants

The referral form contained a list (Schedule A) of the names of the affected employees. A total of eighty employees were listed in the schedule. The dispute was referred to the ELRC by SADTU on behalf of these employees. At the commencement of the arbitration the issue of union membership of the listed employees was raised. I was requested to make a ruling on this issue. However after an adjournment during argument, the legal representatives advised me as follows:

“We have reduced the scope of disagreements further:

The employees who will pursue this claim are those whose names are in the schedule. Mr. BR Ngcobo has since passed away”.

The Applicants in this matter are thus those whose names appear on Schedule A to ELRC Form E1.

The Nature of the Dispute

The Applicants have contended, in their referral to the ELRC, that the dispute concerns an unfair dismissal as contemplated by Section 186(1)(a) of the Labour Relations Act No 66 0f 1995 (the LRA) alternatively 1(b). Alternatively the dispute relates to an unfair labour practice within the purview of Section 186 (2)(c), alternatively an automatically unfair dismissal as contemplated by Section 187(1)(f). Alternatively to the aforegoing the dispute relates to a retrenchment where there was no compliance with the provisions of Section 189.

In his heads of argument, Mr. Nxuseni on behalf of the Applicants, relied on an unfair dismissal as contemplated by Section 186(1)(a). His submission was that the Applicants rely on Section 186(1)(a) and argument on Section 186(1)(b) “is not pursued but not abandoned”. Thus the Applicants case in the main is that they were unfairly dismissed in terms of Section 186(1)(a).

ANALYSIS

The FETC Act made provision for the transfer of employees at FET Colleges from the State to the College and for the College to be regarded as the employer as opposed to the State. The Applicants were employed by the Respondent on fixed term contracts which contracts expired by the effluxion of time on 31 December 2009. The Respondent gave written notice to the Applicants that it did not intend renewing the said contracts and that the Applicants were accordingly not required to report for duty in the 2010 academic year. “Employers that are parties to fixed term contracts are not ordinarily required to give notice of their intention not to renew the contract. Whether or not notice is given, however, the termination of such contracts cannot amount to a dismissal for purposes of paragraph(a) of the definition” Grogan j; Dismissal, Discrimination and Unfair Labour Practices ;2005; p148. Having regard to the fact that the Applicants were employed on fixed term contracts and that the termination of these contracts were brought about by the effluxion of time, the main argument as per the Applicants heads of argument that the applicants were dismissed in terms of Section 186(1)(a) must fail.

The Applicants case in the main is that the Respondent unfairly terminated their contracts of employment, alternatively that they reasonably expected, or were informed, or were made to believe that their employment with the Respondent would be made permanent.

The evidence of the Applicants, who testified, was that they believed that the primary reason for the Respondent not having employed them permanently or not having renewed their contracts was that they were members of SADTU. This was so in the light of the strained relationship between the management of the Respondent and SADTU. Whilst I find that there was a marked deterioration in the relationship between the union and the Respondent, there is no basis to suggest that the Applicants were the victims of a strained union/employer relationship. It was common cause that there were a number of lecturers who were not members of SADTU and whose contracts were not renewed at the time when the contracts of the Applicants had expired. It was also not disputed that some of the lecturers whose contracts had expired on 31 December 2009 had successfully applied for positions with the Respondent and are currently in the Respondent’s employ.

The Applicants testified that they had a reasonable expectation that the Respondent would employ them permanently. The basis of the expectation was grounded in their evidence that the Respondent’s Human Resources Officer, Senzo Shezi, had informed them that their employment would be made permanent. “Whether the expectation so aroused will be regarded as being reasonable depends on the nature of the alleged assurance, the position of the person who gave it and the strength of warnings by the employer that the contract would in fact expire”.Grogan j; Dismissal, Discrimination and Unfair Labour Practices ;2005; p151. Senzo Shezi who is alleged to have given the assurances of permanent employment is a relatively junior employee in the hierarchy of the Human Resources Department and did not have the authority to give such undertakings. Decisions on such matters are made at the level of Council together with input from the rector. The fact that contracts were extended at the end of 2008 to the end of 2009 lends credence to Shezi’s denial that he had given assurances that the Applicants would be permanently employed. At the end of 2008 when their contracts were due to expire, the Applicants were given letters which confirmed the extension of their contracts for a further year to the end of 2009. There was no evidence before me to suggest that any of the recipients of these letters objected to the extension of their contracts for a further period of twelve months, nor did any of the recipients approach Shezi to enquire about his assurance of permanent employment.

The nature of the assurance of permanency in the context of the sector which is programme based, cannot be said to be reasonable. The need to engage lecturers is based on the programmes offered and the programmes offered will obviously depend on the enrollment of learners. In addition the Respondent had been in the process of implementing Level 4 of the new NCV curriculum.

The Applicants bear the onus in terms of Section 192(1) of the LRA to prove that the expectation of continued or permanent employment is reasonable. The Applicants have failed to discharge the onus.

4. AWARD

The Applicants, whose fixed term contracts had expired by the effluxion of time, were not dismissed by the Respondent.

_________________________________

KC MOODLEY