Commissioner: Gerald Jacobs
Date of Award: 05 July 2024
In the matter between:
Grace Ngwenya
(Applicant)
and
DHET Western Cape College of Cape Town
(Respondent)
Details of Hearing and Representation
1. This is the award in the arbitration between, the applicant, Ms Grace Ngwenya and the Department of Higher Education and Training Western Cape College of Cape Town, the respondent.
2. The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 186 (1) (b) of the Labour Relations Act, 66 of 1995 as amended (“the Act ”) and the award is issued in terms of section 138 (7) of the Act.
3. The arbitration hearing took place on 20 May 2024 and concluded on 14 June 2024. The hearings took place remotely, by video, using the Zoom and Microsoft Teams platforms.
4. The applicant was present and represented herself. The respondent was represented by Mr Leando Engelbrecht its Senior Labour Relations Officer.
The issue to be decided
5. The dispute is whether the applicant had a legitimate expectation to be renewed the fixed term contract of employment on the same or similar terms.
6. The applicant sought compensation as a relief for the unfair dismissal.
Background to the dispute
7. The relevant facts are not in dispute. The respondent is a public TVET (Technical and Vocational Education and Training) college located in Cape Town. The college has eight campuses throughout the Cape Town region. The respondent employed the applicant on two fixed term contracts at its Crawford Campus. The first contract was from 30 May 2022 to 31 December 2022. She was then given a second contract from 1 January 2023 which expired on 31 December 2023. In 2023, applicant earned a monthly salary of R33,423.89 which include a 37% additional compensation beyond the base salary.
8. The respondent employed the applicant as a lecturer. She was lecturing in mathematical literacy in the Educational and Further Training Department, for students studying to become pre-school or grade R teachers. The applicant reported to Ms Jardine, her line manager. Although the applicant’s contract expired on 31 December 2023 her last actual working day was on 8 December 2023, when the college closed for the year.
9. Unhappy with the non-renewal of her contract, the applicant referred an unfair dismissal dispute in terms of section 186(1)(b) to the ELRC on 2 February 2024 for conciliation. The matter could not be resolved at the conciliation meeting that was held on 16 April 2024. The employee requested that the matter be resolved through arbitration.
10. Upon the last day of the arbitration hearing, the parties agreed to submit written submissions instead of closing oral submissions. It was directed that parties were to submit such submissions on or before 21 June 2024 and the 14-days within which to issue the award as required by section 138(7) will be calculated from this date. Both parties submitted their closing arguments.
Survey of evidence and arguments
Documentary evidence:
11. I was provided with bundles of documents by each party and references to page numbers in this award relate to documents within these bundles. Additional documents were added to the bundle by the respondent with no objection from the applicant. The applicant’s bundle was marked as bundle A consisting of 20 pages.
12. The respondent’s bundle was marked as bundle B consisting of 81 pages.
Applicant’s evidence and arguments
The applicant’s evidence
13. The applicant’s case rested on her belief that she had a reasonable expectation of returning in 2024, based on several factors. She stated that in September 2023, during a departmental meeting, Ms. Jardine assured contract staff, including the applicant, that they were “safe” and would be returning. It is important to note that Ms. Jardine, who was the applicant’s line manager at that time, had since retired and was no longer with the college, making her unavailable to testify at the hearing. Additionally, the witness the applicant intended to call, Mrs. Faieka Steyn, was also unavailable to testify.
14. The applicant further claimed that in November 2023, the campus manager requested her documentation, including her permit for 2024. She interpreted this request as an indication that she would be returning to her position in the upcoming year. Even after the campus closed, she remained in the staff WhatsApp groups until 24 January 2024 and continued to communicate with students about registration during this period. According to the applicant, she was still performing her duties and believed she was still employed by the respondent during this time.
15. The applicant provided testimony referencing a timetable she presented on page 8 of bundle A, which she received while she was still in the WhatsApp group. The document showed distinct sections for different levels and subjects, notably highlighting Mathematics Literacy (ML). Each section listed designated lecturers, identified by initials or surnames. The applicant interpreted the timetable as indicating the appointment of two new Mathematics Literacy lecturers, as their names and surnames were listed for the same subject she taught in 2022 and 2023. This, she argued, suggested that she had been replaced within the department.
16. The applicant testified that she was initially employed on a six-month fixed-term contract in 2022. When this contract ended in December 2022, she received notification that it would not be renewed. In 2023, she was employed on a 12-month contract starting in January 2023 and did not receive a reminder that her contract was ending in December 2023 and would not be renewed.
17. In Janaury 2024, she still had possession of the college’s laptop, keys, and other assets belonging to the respondent. The applicant stated that it was only at the end of January 2024 that these assets were requested back from her. This timing made her feel more confident that she would be returning to the Campus. She questioned why, if the respondent knew she would not be returning, they did not request the return of their assets when the Campus closed.
Cross-examination
18. The applicant was referred to the automatic termination clause in her employment offer letter dated January 6, 2023, and asked about her understanding of this clause (Bundle B, pages 17-18). She stated that she understood it to mean her contract would expire on December 31, 2023, but felt the respondent created an expectation that she would continue working.
19. She was referred to WhatsApp messages (Bundle A, page 19) between her co-workers, where she was asked if she had referred the matter to the CCMA. She replied that she had not because her contract ended in December, and she believed the college was right, implying they did nothing wrong. It was then put to her that she had no issues with her contract ending, as she understood this from the outset. She disagreed, maintaining that she did have an issue with the non-renewal, even though her co-workers had voiced concerns about it more than she did.
20. When asked about returning the respondent’s assets, including a laptop and keys, the applicant said she returned them to the campus manager, Ms. Melody Marescia, but did not express her concerns about her contract renewal because she was still processing what had happened.
21. Regarding the campus manager’s request for her permit documentation, it was put to her that the request was not for an appointment in 2024 but because her permit expired in September 2023, and the documentation was needed as her contract expired in December 2023. The applicant admitted that she is a foreigner and stated that when she submitted her permit, the campus manager mentioned it was for a 2024 renewal.
22. The applicant claimed her line manager, Ms. Jardine, assured contract staff they were “safe” and would be returning in 2024, forming a significant part of her claim of unfair dismissal and her argument that she had a reasonable expectation of returning to work in 2024. It was put to her that only the principal of the College of Cape Town can approve and appoint staff, not the line manager. She responded that the line manager attended meetings with the principal where these issues were discussed and would not say things that were not agreed upon in those meetings.’
23. The applicant stated that she did not receive a non-extension letter for 2023, which also created an expectation that she would return. She was asked why she needed a letter reminding her that her contract was coming to an end when the contract clearly stated it expired on December 31, 2023. She responded that she expected clear communication from the college, which she did not receive.
Respondent’s evidence
Testimony of Mrs. Melody Marescia
24. She testified that the automatic termination clause in the applicant’s contact means that the contract comes to an end on 31 December 2023, with no expectation of employment in 2024. She stated that as the campus manager, she did not have the authority to renew or offer employment to the applicant before or after 31 December 2023. She could only propose or recommend an appointment, but the authority to approve and appoint staff rests with, Dr. Manager Muswaba the principal of the College of Cape Town. She explained that the line managers and programme manager report to the academic heads, who in turn reports directly to her. She and other senior managers report to the principal of the college and the authority to appoint is vested with him. The senior managers can submit their recommendation for appointments, and the principal approve or decline these recommendations.
25. As to the reason the applicant did not receive a letter that reminding her that her contract was coming to an end was because the principal visited all the campuses, explaining that the college will no longer issue termination letters for contract workers.
26. Regarding a WhatsApp message sent to the applicant to submit her documentations she testified that it was prompted by the HR department’s notice that the applicant’s work permit had expired in September 2023, even though her contract ran until 31 December 2023. The request for the work permit was not related to an appointment for 2024. The HR department requested that campus managers ask all foreign contractors for their work permits. The applicant’s work permit was flagged by HR because it had expired in September 2023. She conceded that the applicant visited her office when she submitted the requested documentation but that she never said to the applicant that the documents were necessary for the renewal of her contract for 2024.
27. As to the returning of the College assists, she explained that at the end of each year, staff were instructed to leave their keys and laptops in a locked drawer and remove only their personal belongings. This procedure was communicated through meetings and reinforced by programme managers and academic heads. Although some staff might take the College assets home, they were expected to return them the following year, as was the case with the applicant.
28. As to the timetable evidence presented by the applicant, she explained that programme managers and academic heads were responsible for drafting timetables, which would only be reviewed by her during audits.
Cross examination
29. She testified about her interactions with the applicant regarding potential employment in 2024. She acknowledged that they might have discussed job prospects for the upcoming year, but she could not recall the exact details of their conversation. The manager stated that she may have mentioned the need for lecturers in 2024 but emphasised that any hiring decisions were contingent upon student enrolment figures for that academic year.
30. Regarding the applicant’s involvement in student registration, the campus manager provided context about the general process. She explained that all lecturers, including the applicant, were typically required to assist with student registration, which usually commenced after the September holidays. However, when questioned about the applicant’s alleged participation in student registration activities in January 2024 (after her contract had expired), the manager expressed surprise. She stated that she was unaware of any such involvement and asserted that it should not have occurred, as the applicant’s contract had already ended by that time.
31. She addressed the claim that the applicant’s line manager, Ms. Jardine, had told contract workers, including the applicant, that their positions were ‘safe’ for the following year. She explained that Ms. Jardine did not have the authority to make such promises regarding future employment. Furthermore, she pointed out that it was unlikely Ms. Jardine could have made such assurances because the campus had not yet reached its Programme Quality Mix (PQM) at that time. The PQM is a crucial indicator of the expected student numbers for the upcoming academic year. Without this information, it was not possible to confirm employment opportunities for 2024. The manager clarified that according to the College of Cape Town’s statute, the principal is the designated official who makes final decisions on staff appointments. These decisions are based on recommendations and student enrolments numbers provided by each campus.
32. Addressing the specific circumstances of the applicant’s position, the campus manager testified that the post fulfilled by the applicant in 2023 was not advertised for the following year. She explained that not all of the six groups previously taught by the applicant were replaced, citing a shortage of student groups as the reason. The manager elaborated that the campus’s needs had evolved, necessitating staff with specific qualifications and experience in areas such as occupational programs and early childhood development. She stated that the applicant did not possess these particular qualifications, which contributed to the decision not to renew her contract.
Closing arguments
The applicants written submissions
33. The applicant’s argument focuses on the creation of a reasonable expectation of contract renewal through various actions and communications by college representatives, despite the fixed-term nature of her contract.
34. She argued that her expectation of renewal was based on several factors. First, during a meeting in September 2023, her line manager, Ms. Jardine, assured contract employees of job security for 2024. Second, in November 2023, the campus manager, Ms. Melody, requested her documents, which implied continued employment. Third, unlike the previous year, she did not receive a termination letter or a request to return college assets at the end of 2023. Fourth, she was involved in registration activities in early January 2024. Lastly, the delayed communication, informing her to return the employer’s assets only on January 24, 2024, cost her the opportunity to apply for other teaching positions.
35. Regarding the respondent’s witness testimony that Ms. Jardine lacked the authority to assure contract renewal, the applicant argues that it is unreasonable to expect employees to doubt the credibility of their superiors.
The respondent’s written submissions
36. In presenting the defence against the applicant’s claims, the respondent’s representative highlighted key legal principles, addressed issues with the applicant’s evidence, and emphasised relevant contractual aspects. Furthermore, the representative argued that the documentary evidence presented by the applicant should be disregarded as hearsay, as it was not corroborated by witnesses or the original authors.
37. The respondent referred to the case of SA Rugby (Pty) Ltd v CCMA & Others (2006) BLLR 27 (LC), which established an important principle regarding reasonable expectations of contract renewal. According to this precedent, an employee’s expectation must be based on objective facts rather than personal belief or interpretation. The court emphasised that this is an objective test, thereby setting a higher standard for proving such expectations.
38. Moreover, the respondent’s representative contended that the applicant failed to provide credible evidence to support her claim. Specifically, pointing out that the applicant did not produce any witnesses to corroborate her version of events. Consequently, the respondent representative argued that the applicant’s case is based solely on her personal interpretation of the situation, which he deemed insufficient to support her claims.
39. In addition, the respondent representative emphasised the explicit nature of the employment contract in his submissions. He noted that the contract was for a fixed term from January to December 2023, and that the offer letter, signed by the applicant on 6 January 2023, clearly stated that the employment contract would automatically end on 31 December 2023, with no further contract to be offered in 2024. As a result, he argued that this clear language should have prevented any reasonable expectation of renewal.
40. Regarding the applicant’s awareness of the non-renewal, the respondent’s representative cited a WhatsApp message from the applicant to a colleague, which stated: “my contracts had ended in December, so I thought the college will be in the right.” He maintained that this message demonstrates the applicant’s full awareness of the contract’s end date and its finality.
41. In conclusion, the respondent representative maintained their position that there was no unfair dismissal, as the contract came to its natural end. They asserted that no reasonable expectation of renewal was created, given the clear contract terms and lack of supporting evidence. Consequently, they argued that the applicant failed to meet the legal burden of proof required to support her claims.
Analysis of evidence and arguments
42. A fixed-term contract is so named because its duration is set in advance by the parties, which means that when it expires, the parties are automatically released from their obligations. However, the legislature has outlined circumstances in which employees may claim to have been dismissed when their fixed-term contracts expire. These circumstances are detailed in section 186(1)(b) of the Act, which states that a dismissal is deemed to have occurred if an employee, employed under a fixed-term contract, 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; or
(ii) 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;
43. In this case, the respondent relied on the automatic termination of employment due to the expiry of the fixed-term contract. Conversely, the applicant claimed unfair dismissal, relying on section 186(1)(b)(i). She contended that she had a reasonable expectation that her contract would be renewed on the same or similar terms and argued that she had been dismissed on January 24, 2024, when she was requested to return the college assets.
44. Whether a dismissal has taken place within the meaning of section 186 of the Act is a jurisdictional issue, as the ELRC lacks the authority to entertain a dispute if an employee has not been dismissed. Therefore, the applicant bears the burden of proving that she had a “reasonable expectation” that her contract would be renewed. To meet this burden, the applicant must present facts that, when objectively considered, demonstrate that such an expectation was reasonable.
45. The test for reasonable expectation is twofold. The first part of the test requires the employee to demonstrate that they had a subjective expectation that their fixed-term contract would be renewed. This expectation must be genuinely held by the employee, based on the circumstances surrounding their employment. The second part of the test evaluates whether the employee’s subjective expectation is reasonable when assessed objectively. This involves considering whether, under the given circumstances, a reasonable employee in the same position would have expected the employer to renew the fixed-term contract (see University of Cape town v Thomas auf der Heyde [2001] 12 BLLR 1316 (LAC); NUM obo Mpaki v CCMA & Other JR 1983/2014(handed down 0n 9 September 2016).
46. It was undisputed that the applicant was well-versed in the terms of her contract and fully understood them. Nevertheless, she presented various factors that she believed created a reasonable expectation of continued employment. Although appointed to a fixed-term contract as a lecturer, the applicant relied heavily on an assurance from her line manager, Ms. Jardine, who stated during a departmental meeting in September 2023 that contract staff, including the applicant, were “safe” and would be returning. The applicant perceived this assurance as creating a reasonable expectation of renewal. However, the respondent countered this claim by arguing that only the principal of the College of Cape Town has the authority to approve and appoint staff, not the line manager. To support this point, the respondent cited their Quality Management System Gov-POL-001, which explicitly states that the principal has the delegated authority from the Minister to appoint staff at operational levels in posts established on the organizational structure of the Department and identified as posts to the college.
47. Furthermore, the evidence presented, which went unchallenged, described a clear hierarchy and reporting structure within the college. Line managers, such as Ms. Jardine, report to department heads, who in turn report to the campus manager. The campus manager then reports to the principal of the College of Cape Town. Within this structure, the role of line managers typically involves managing day-to-day operations and potentially providing input on staff recommendations. However, they do not have the authority to make final hiring decisions. Consequently, any assurances given by a line manager about job security or future employment would be informal and not binding without approval from higher authorities. This point was further reinforced by the testimony of Mrs. Marescia, the campus manager, who stated that she did not have the authority to renew or offer employment and that only the principal could make such decisions. Given this hierarchical structure and the clear delegation of authority, it is evident that Ms. Jardine did not have the power to appoint or guarantee the renewal of contracts. Therefore, any expectations created by her assurances would not have been backed by the actual decision-making authority within the college.
48. The applicant further claimed that her expectation was reinforced by a request for documentation. In November 2023, the campus manager requested the applicant’s documentation, including her permit for 2024. The applicant interpreted this request as an indication that she would be returning in 2024. However, the respondent clarified that the request was related to the expiration of the applicant’s work permit in September 2023 and was not an indication of employment in 2024. In fact, the HR department had requested campus managers to ask all foreign contractors for their work permits to ensure compliance with legal requirements. The applicant also admitted that she was a foreigner, and the respondent’s evidence indicated that the documentation request was part of a routine HR process to ensure that all foreign contractors had valid work permits. This process was not linked to any promise or expectation of employment for 2024.
49. The applicant also claimed that her expectation was further solidified by her participation in student registration, during which she communicated with students via a WhatsApp group. Additionally, she argued that the retention of college property and the timing of the return of assets strengthened her expectation. This active involvement in work-related activities suggested that she was still performing duties expected of an employee. The applicant contended that these actions by the respondent created an impression that her employment was ongoing or would be renewed. She reasonably interpreted these actions as implicit assurances of continued employment, particularly in the absence of explicit communication to the contrary. However, the campus manager, Mrs. Melody Marescia, testified that she was unaware of the applicant’s involvement in student registration activities in January 2024. Mrs. Marescia attributed this to administrative oversight rather than an indication of ongoing employment. Furthermore, she explained that the applicant’s inclusion in the WhatsApp group and involvement in registration were standard practices and not indicative of contract renewal. Regarding the possession of assets, Mrs. Marescia clarified that it was common for most staff members to retain college property at the end of the year, and the delay in requesting asset return was simply a procedural delay unrelated to employment status.
50. The applicant presented a timetable showing new Mathematics Literacy lecturers, which she interpreted as her replacement. The applicant saw new Mathematics Literacy lecturers on the timetable and interpreted this as evidence that she was being replaced. She believed her position was still needed and filled by others, which in her mind contradicted any claim that her role was no longer required. This support her argument that she had a reasonable expectation of continued employment, as the subject she taught was still being offered. However, this claim was countered by several points. The first was that the timetables are managed by programme managers and academic heads, not by those making employment decisions. Furthermore, Mrs. Marescia testified that the applicant’s specific position was not advertised for 2024 and the college cited a shortage of student groups and evolving campus needs requiring specific qualifications that the applicant lacked. The applicant did not challenge these counterarguments. While the applicant tried to use the timetable as evidence of her continued necessity to the college, the respondent effectively demonstrated that the situation was more complex, involving factors like changing educational needs and enrolment numbers that the applicant had not considered.
51. Lastly, the applicant claimed that the fact she did not receive a non-extension letter for 2023 created an expectation of renewal. Regarding this point, the respondent explained that the reason the applicant did not receive a letter reminding her that her contract was coming to an end was because the principal had visited all the campuses, explaining that the college would no longer issue termination letters for contract workers. Although the applicant claimed that she was not aware of these visits by the principal, this does not necessarily mean that they did not occur. The lack of awareness on the applicant’s part does not negate the possibility that such a policy change was indeed communicated to the staff at large.
52. Given these factors, I find that the applicant’s subjective expectation of renewal was not sufficiently supported by objective evidence or authorised assurances. The respondent’s actions and explanations, along with the explicit terms of the original contract, suggest that a reasonable person in the applicant’s position should not have expected the contract to be renewed.
53. As a result, the applicant did not succeed in showing that she had a reasonable expectation that her contract would be renewed on the same or similar terms. Therefore, it can be concluded that the applicant was not dismissed within the definition outlined in section 186(1)(b)(i) of the Act.
Award
54. The applicant failed to prove that she had a legitimate expectation that her contract would be renewed. The respondent’s conduct did not amount to an unfair dismissal under 186(1)(b)(i) of the Labour Relations Act.
55. The applicant’s case is dismissed.
Gerald Jacobs
ELRC COMMISSIONER