In the matter between

TLALETSI ELLEN APPLICANT

and

PROVINCIAL DEPARTMENT OF EDUCATION: NORTH WEST RESPONDENT

ARBITRATOR: KENNETH DLAMINI

HEARD: 28 SEPTEMBER 2021

CLOSING ARGUMENTS: 15 OCTOBER 2021

DATE OF AWARD: 02 December 2021

AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was part-heard on 22 February 2020, 23 October 2020, 25 August 2021 at the Department of Education offices in Zeerust, Welbadacht Location, North West Province. It was finalized on 28 September 2021 at the same venue.

2. The Applicant, Ms Ellen Tlaletsi was present and represented by Mr General Sebola, an official from the trade union MEDWUSA. In turn 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 Applicant 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 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. In turn the Respondent’s position is that the Applicant was not dismissed, but Applicant’s fixed-term contract came to an end.

BACKGROUND TO THE DISPUTE

5. The Applicant was employed on a fixed term contract as an educator PL 1, earning a basic monthly salary of R 17, 734, 25. The Applicant resumed employment in July 2014. The Applicant’s first contract ended on 31 December 2014. Thereafter fixed term contract was renewed on a one-year basis from January 2015 up until December 2017. From January 2018 up until 31 December 2018, the Applicant worked without a contract. fixed term contract. In 2019 the Applicant returned to work and continued to render her services up until 18 February 2019 wherein she was verbally informed that her contract for 2019 will not be renewed. The Applicant’s last day at work was 18 February 2019. The Applicant’s claim is that she was unfairly dismissed and that she had a reasonable expectation that her fixed term contract will be renewed for 2019 and that she also had a reasonable expectation to be appointed on a permanent basis by the Respondend.

6. The Applicant referred a dispute to the Council. 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

7. The Applicant testified herself and did not call any witnesses. Bundle A, pages 1-58 were submitted in support of the Applicant’s case. The Respondent called two witnesses and further submitted a three-page bundle. Bundle A. pages 1-3 in support of its case.

8. The Applicant, Ms Ellen Tlaletsi testified that she resumed employment as an Educator PL1 at Skuinsdrift Primary School in a pool post or in a temporary capacity from 21 July 2014 up until 31 December 2014. Her fixed term contract was renewed on a yearly basis from 2015 up until December 2017 bundle A, pages 2-6. She continued to state that from January 2018 up until December 2018 she worked without a contract. When the school re-opened for 2019, she returned to the school and she continued rendering her services as an Educator up until 18 February 2019 wherein the Acting School Principal, one Ms Lesejane came to her while teaching and she (Ms Lesejane) informed her that her contract will not be renewed. She said her last day at work was 18 February 2019.

9. The Applicant went on to state that in 2016 Ms Senne who occupied a permanent post was transferred to another school. The Acting School Principal, Ms Lesejane called one Ms Sekento to come and replace Ms Senne on the substantive post despite her being available to act in the substantive position left by Ms Senne. Being aggrieved by the decision of Ms Lesejane she escalated the matter to the Circuit Office as she felt that she had been side-lined.

10. Having escalated the matter to the Circuit Office. The Circuit Office intervened, Ms Sekento was later stopped and she thereafter acted in the substantive post of Ms Senne. Not very long the Acting School Principal, Ms Lesejane informed her that the substantive post Ms Senne had occupied was an excess position and for which she did not believe Ms Lesejane at the time.

11. In 2018 Ms Sekento returned to the school as a temporary Educator. Herself and Ms Sekento were stopped on 18 February 2019 from teaching by Ms Lesejane reason being that the (Province) or Respondent had taken a decision to do away with all pool posts in the province.

12. The Applicant stated that in 2015 the Acting School Principal, Ms Lesejane also taught mathematics in grade 4. As an Acting School Principal, Ms Lesejane was the only person who had access to examination papers at the school.

13. The Applicant stated that Ms Lesejane gave grade 4 learners a mathematics examination paper a day before the examination sit down date. The Applicant stated she was an invigilator in that class in question. Having discovered what Ms Lesejane had done she alerted or informed the other educators at the school. Ms Lesejane was later called upon to apologise to the examination committee for her action, which Ms Lesejane did.

14. Following this incident Ms Lesejane accused her of trying to get her fired or dismissed. Ms Lesejane made it clear and she (Ms Lesejane) assured her that as long as she (Ms Lesejane) is the principal at the school she (Applicant) will never see or get any permanent appointment.

15. The Applicant stated that having been stopped on 18 February 2019 together with Ms Sekento. Ms Sekento returned to the school shortly thereafter. Ms Sekento was subsequently appointed on a permanent position which she (Ms Sekento) occupies to date.

16. She said Ms Sekento was followed by another Educator one Mr Moswane who came and occupied a temporary post like she did prior to being stopped on 18 February 2019.

17. The Applicant argued that in terms of the school’s curriculum plan for 2019 which was put together by the SMT school management team towards the end of 2018 and for which she was an integral part of it and she was allocated subjects for 2019 and an indicator that she was still needed for 2019. She said the planning and subject allocation is done every year end for the following year and it been a practice bundle A, pages11-14. She stated that she would submit all requisite documentation on a yearly basis to Ms Lesejane who will in turn attach and sign all the necessary documentation and motivation. Ms Lesejane will thereafter send everything to the circuit office for recommendation and subsequent approval. She would return to the school when schools re-open and later she would receive her appointment letter. She argued that she was expecting the same in 2019.

18. The Applicant stated that at no stage was she approached for any available posts at the school by the Acting School Principal, Ms Lesejane. She vehemently denied having been approached by anyone for voluntary work at the school. She said that after being stopped on 18 February 2019 she remained at the school provided accommodation for months and for which the Acting School Principal Ms Lesejane was fully aware of her presence and availability. but never bothered to communicate anything to her at the time.

19. The Applicant argued that The Applicant stated that having been stopped on 18 February 2019 together with Ms Sekento. Ms Sekento returned to the school shortly thereafter. Ms Sekento subsequently appointed on a permanent position which she occupies to date. Ms Sekento was followed by another Educator one Mr Moswane who came and occupied a temporary post like she did prior to being stopped on 18 February 2019.

THE RESPONDENT’S EVEIDENCE

20. The first witness of the Respondent, Ms Welheminah Mmawesi Lesejane testified that she had been Acting as a School Principal at Skuinsdrift Primary since May 2014 to date. The Applicant was one of the two PL1 Temporary Educators at Skuinsdrift Primary School the other one being Ms Sekento.

21. She went to state that the according to the approved PPM the school qualified for seven substantive position or teaching posts, but only five educators were physically available, hence the need to employed the Applicant and later one Ms Sekento.both on pool posts. The Applicant was the first to join the school. Ms Sekento.joined the school later.

22. From 21 July 2014 up until 31 December 2015 the Applicant was employed on a pool post for Skuinsdrift Primary School. From January 2016 up until 31 December 2017 the Applicant continued to teach at Skuinsdrift Primary but using a substantive post from another school called Rorisang Special School. Bundle A pages, 2-6 appointment letters. From January 2018 up until 31 December 2018 the Applicant was on a pool post for Skuinsdrift Primary School.

23. From July 2014 up until 31 December 2017 the Applicant had contracts of employment or appointment letters. In 2018 the Applicant worked without a contract and for which she only became aware when the Applicant came to her to enquire about not being paid her salary.

24. On 07 January 2019 she attended a meeting at Litchenburg Secondary wherein all district school principals had gathered and the District Director one Mr Nhlabathi addressed the school principals. Mr Nthlabathi instructed all school principals who are having pool posts educators at their schools to terminate the fixed term contracts of such educators with immediately effect except for those Educators on substantive posts.

25. When the schools re-opened for 2019, she called a staff meeting. The Applicant and Ms Sekento attended the staff meeting. It was at this staff meeting wherein she communicated the instruction given by the District Director, Mr Nhlabathi regarding the termination of pool posts due to budgetary constraints The Applicant and Ms Sekento worked up until 18 February 2019. Both the Applicant and Ms Sekento were stopped on 18 February 2019 to render their services. Prior to the termination of contracts of both the Applicant and Ms Sekento she received a call from the circuit manager who indicated that the contracts of the two educators will not be renewed and she had informed them, which she did.

26. Ms Sekento came back to the school as a volunteer in mid-March 2019. Around April/ May 2019 while Ms Sekento was volunteering at the school gain a substantive post to which Ms Sekento was placed into that post. In June 2019 the school was given a pool post by the Circuit Manager. The Circuit Manger instructed her to call one Mr Moswane for the pool post which she did. Mr Moswane came into the pool post from June 2019 up until December 2019.

27. After Mr Moswane had left the school. In 2020 she personally decided and unliterally so picked a locally based educator to replace Mr Moswane who had since left the pool post at the end of 2019.

28. The witness stated that she could not call the Applicant because in an earlier conversation with the Applicant following the termination on 18 February 2019, the Applicant had indicated that she (Applicant) wanted to go and look for a job elsewhere and that the Applicant had not only refused to volunteer at the school like Ms Sekento, but also refused to follow a substantive post from Rorisang Special School from which the Applicant had been paid from while at the Skuinsdrift Primary following the demarcation process.

29. She said around March 2019 following the termination of her contract the Applicant submitted a written grievance to her and for which she sent to the circuit manager. The Applicant also approached the Department of Employment and Labour and applied for the UIF benefts. She said this was indicative that the Applicant wanted to leave the school.

30. The witness did not dispute that around June 2019 the Applicant had not vacated the school provided accommodation. She could neither admit nor deny if the Applicant’s grievance was addressed later on.

31. She stated that had the Applicant volunteered the Applicant could have been considered or given preference over Ms Sekento.

32. She further stated that on a yearly basis she would talk to the Circuit Manager about the retention of the Applicant and Ms Sekento and the Applicant from 2014 had been returning to the school at the start of each year and she will receive her appointment later on.

33. She argued that the Applicant was not dismissed, but the fixed term contract had expired and that the Respondent never created any reasonable expectation for the renewal of the fixed-term contract.

34. The second witness of the Respondent, Mr Lucky Apaulos Pule testified that he is the Respondent’s Circuit Manager under the Bojanala District since March 2020. Before March 2020 he had been a Circuit Manager at the Ngaka Modiri Molema District in the Ramotshele sub-district, Nietverdient Circuit.

35. He went on to state that the Applicant was an Educator at a small farm school called Skuinsdrift Primary School. Skuinsdrift Primary School had been allocated seven budgeted or substantive posts. When the School Principal one Mr Mohone was seconded to become a Chief Negotiator for labour. Ms Lesejane (First witness) who at the time was a Head of Department (HOD) was appointed as an Acting School Principal. The Applicant was thereafter appointed as an Educator in a temporary capacity/pool post created for Skuinsdrift from July 2014 up until December 2015. From 2016 up until 2017 the Applicant remained at Skuinsdrift Primary but using a borrowed substantive post from another school called Rorisang Special School under Moses Kotane district.

36. Another Educator resigned at Skuinsdrift Primary School creating a second pool post into which one Ms Sekento from the surrounding community was employed in a temporary capacity. The Applicant and Ms Sekento continued rendering their services in terms of their contracts of employment up until 31 December 2018.

37. On 07 January 2019 all school Principals, circuit managers and sub-district managers converged at the Litchenburg Secondary School in an extra-ordinary meeting called by the then District Director one Mr Monale. Present at the meeting were the Respondent’s Superintendent General, Chief Director-Human Resource management and the District Director.

38. It was at this meeting that all school Principals were informed that the province had no budget to pay for pool post educators in year 2019. The school Principals were instructed to inform their respective temporal educators occupying pool post about this instruction from the province, and to give pool posts educators the required one month notice when the schools re-opened in few days’ time following the meeting.

39. As a Circuit Manager he also reminded school principals to stop without any exception all pool posts educators given the announced budgetary constraints although he did not communicate this in writing.

40. Ms Lesejane, the acting school principal of Skunsdrift Primary did confirm to him that the Applicant and Ms Sekento as the only two temporal educators on pool post had been stopped from rendering their services at the school as from 18 February 2019. He later met the Applicant and Ms Seketo in Zeerust wherein Ms Sekento informed him that their services at the school had been terminated, and that they were aggrieved by such a decision.

41. The witness went on to state that when the Applicant was still using the borrowed substantive post from Rorisang Special School between 2016 and 2017, Rorisang Special School fell under the same Municipality boundary with Skuinsdrift Primary. Following the Munucipality demarcation process Rorisang Special School was moved to Bonjanala District and Skuinsdrift Primary was moved to the Ngaka Mpiri Molema District.

42. At the time the Applicant was advised to follow a substantive post she had been paid on from Rorisang Special School. The Applicant was not keen to go to Rorisang Special school to take advantage given that she had been paid from the same substantive while she was physically teaching at Skuinsdrift Primary. Instead, the Applicant opted to remain at Skuinsdrift which had been moved to Ngaka Modiri Molema district. The trade union which the Applicant belonged to also tried to convince the Applicant to go to Rorisang Special School without any success.

43. As a Circuit Manager he did try to find a school for the Applicant without any success. At some point he did try to place the Applicant at one of the foundation phase schools, unfortunately the school needed an educator with a Setswana dialect, and for which the Applicant has a Sesotho dialect.

44. When the schools re-opened like most temporary educators the Applicant and Ms Seketo returned to the school given that the Respondent over the years following the medium-term expenditure framework pool posts normally became available. The Applicant and Ms Seketo continued rendering their services to the school by default up until they were stopped on 18 February 2019.

45. After the Applicant had been stopped together with Ms Seketo, he received a letter from the Applicant through the Respondent’s labour relations department Mr Mudau who is now in Rustenburg. The Applicant indicated in her letter that she wanted to leave the school. The Applicant further requested that she be paid for the two months for which she had rendered her services to the school meaning January and February 2019. Having received the letter from the Applicant he then liaised with his Sub-District Manager and Corporate wherein a post from another school was loaned to pay the Applicant the two months period which the Applicant had requested. When asked the copy of the letter the witness could not present such a letter.

46. The witness was asked about a grievance lodged by the Applicant around March 2019 and for which the Respondent’s first witness Ms Lesejane had confirmed having receive the grievance which she stated that she had forwarded the grievance to circuit. The witness could neither confirm nor deny receipt of such a grievance from the Applicant.

47. The witness went on to state that after the Applicant had left the school the circuit visited the school and met with the relevant stakeholders including labour wherein concerns of the school were discussed. He said he was informed that the Applicant’s personal belongings which included furniture was still in the house which the Applicant had occupied.

48. When a question was asked to the witness as to whether the Applicant had an appointment letter for January 2018 up until December 2018 the witness became evasive and he could not provide such an appointment letter for the Applicant for the period in question. The witness maintained that it was not possible that the Applicant would have worked without an appointment letter. As for 2019 the witness stated that he also became aware after the meeting in Litchenburg that pool posts were not going to be funded in 2019 hence the non-renewal of the Applicant’s contract.

49. The witness argued that the Applicant had not signed any appointment letter for 2019 as the last appointment letter had ended in December 2018, and as such the Applicant would have not been dismissed by the Respondent instead the contract of the Applicant came to an end at the end of December 2018, and that the Applicant would have not had any reasonable expectation for the renewal of her contract in January 2019 including permanent appointment because the Applicant had been on a pool post and not a substantive vacant post.

50. Turning to the issue of Ms Seketo the witness stated that Ms Seketo returned to the school as a volunteer wherein she received a stipend determined by the SGB. Later the school borrowed a substantive post from Thuto Kemaatla Secondary School and for which with the necessary motivation Ms Seketo was put in to that post. In June 2019 following the medium- term expenditure frame work the school was given a pool post in to which Mr Moswane was put in to that post until December 2019. He stated that Mr Moswane he is now an educator in another school.

ANALYSIS OF ARGUMENT AND EVIDENCE
Applicable law

51. 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.

52. 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.

53. In this matter, it is common cause that the parties entered into a written fixed term contract which started on 21 July 2014 up until 31 December 2014 and that the fixed term contract was thereafter renewed on a year-to-year basis from 2015 up until 31 December 2017.

54. It is also common cause that the Applicant was informed verbally by the Acting School Principal (Respondent’s first witness) on 18 February 2019 that her contract will not be renewed. At the time the Applicant had already returned to the school teaching for almost two months being January and February 2019 and for which it is not disputed that the Applicant was paid for the service rendered for this period.

55. It was also not disputed that the Respondent failed to give the Applicant the requisite 30 days’ notice of termination of contract to the Applicant and by doing so the Respondent contravened it own Human Resources Management directive.

56. It was further not disputed that at the beginning of each year when the schools’ re-open temporary educators who had been rendering their services the previous year will return to their respective schools and continue teaching and only receive their appointment letters later on which had been the case with the Applicant. In 2018 the Applicant worked without a contract of employment or appointment letter and she was being paid by the Respondent. In January 2019 the Applicant returned to the school provided accommodation and she was permitted to continue working without a contract of employment up until 18 February 2019 which was her last day at work after being told that her contract will not be renewed for 2019.

57. It is also common cause that the Respondent continued to have pool posts into 2019 and that the school had regain some of posts and that a post can be loaned from another school.

58. It is further common cause that in terms of the Principal’s Curriculum plan, the Applicant formed an integral part of this plan. This simply means that the Acting Principal needed the Applicant’s skills and services and hence she recommended her and expected her to continue with her duties in 2019. The Respondent expected the Applicant to report for duty as she was in the allocated list of temporary Educators for 2019.

59. The Applicant testified and made serious and damning allegations against the Respondent’s first witness the Acting School Principal. The Applicant stated that in 2015 the witness was also teaching mathematics in grade 4. As an Acting School Principal, the Respondent’s first witness was the only one having access to examination papers. The Applicant went on to state that the witness secretly gave the grade 4 learners the mathematics examination paper a day before the examination date. The Applicant stated she was the invigilator in that class in question and she alerted the other educators about the incident The Respondent’s first witness was later called upon to apologise to the examination committee, which she did. Thereafter the Respondent’s first witness accused her of trying to get her (Respondent’s witness) fire and she (Respondent’s first witness) had assured Applicant that she (Applicant) will never see or get any permanent appointment at her school.

60. This version was never disputed or challenged on any material grounds and as such remained unchallenged including the Applicant’s version contained in paragraph 9, 10,12,13 and 14 above.

61. The fact that the Applicant was given forms to apply by the Acting School Principal and furthermore, the Acting School Principal’s signature on the Applicant’s application recommending that her contract be renewed, that the Applicant formed part of the 2019 planning and work allocation and that the Applicant was allowed to continue working into 2019 indeed this in itself raised the Applicant’s expectation that her contract will be renewed.

62. From the reading of paragraph 26-29 which is the Respondent’s first witness version in conjunction with the version of the Respondent’s second witness who failed to present any evidence of any shape or form to substantiate his oral testimony. I find the Respondent’s version to be highly improbable. My view is that the issue of the Applicant was not properly handled or fairly dealt with by the first and the second witness of the Respondent.

63. Having had regard to the entire evidence presented before me including credibility and reliability of witnesses, I am persuaded by the version of the Applicant and I have no reason to doubt it that it may have been fabricated. It is based on these reasons that I find that the Applicant has on a balance of probability been able 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 for 2019.

64. 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.

65. In view of the above analysis, It is my finding that the Applicant has 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, but not for permanent appointment because the Applicant occupied a pool post and not a vacant substantive post.

AWARD
66. It is my finding that the Applicant was unfairly dismissed by the Respondent
.
67. It is further my finding that the Respondent’s handling of the Applicant’s contract of employment created an expectation that her contract will be renewed on the same or similar terms, but not for permanent appointment.

68. The Respondent, Provincial Department of Education-North West is ordered to pay compensation to the Applicant, Ms Ellen Tlaletsi to the amount of R 177, 342. 50 (One Hundred and Seventy-Seven Thousand Three Hundred and Forty-Two Rand and fifty Cents) calculated as R 17, 734.25 per month x 10 months subject to legal deductions on or before 21 January 2022.

Kenneth Dlamini
Panellist: ELRC