About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 155
|
|
South African Democratic Teachers Union and Another v Education Labour Relations Council and Others (JR 2575/09) [2012] ZALCJHB 155 (6 December 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
No JR: 2575/09
In the matter between:
SOUTH AFRICAN
DEMOCRATIC
TEACHERS UNION
...........................................................................
First
Applicant
EPHRAIM ESKIE SOKE
...............................................................
Second
Applicant
and
EDUCATION LABOUR
RELATIONS COUNCIL
.................................................................
First
Respondent
CAWE N.O.
...............................................................................
Second
Respondent
DEPARTMENT OF
EDUCATION: GAUTENG
.............................
Third
Respondent
Date of hearing: 09
February 2012
Date of judgment: 06
December 2012
Summary: Review
application. Unfair labour practice. Reasonable expectation to be
appointed into a position seconded to.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Molahlehi J
Introduction
This is an application
to review and set aside the arbitration award made by the second
respondent (the arbitrator) under case
number PSES497-08/09GP on 4
August 2009. In terms of the arbitration award the arbitrator found
that the third respondent had
not committed an unfair labour
practice in not appointing the second applicant to a position higher
than the one from which he
was before he was seconded to the head
office of the third respondent.
Background facts
The applicant was
employed by the third respondent as an educator on Post Level 1
(PL1), as from 1988 and at that time his main
duties at the
secondary school where he was assigned, was to conduct teaching for
the learners. After 14 years as a classroom
educator the second
applicant was during July 2003 seconded to the head office in the
institutional development and support–
general education and
training unit (GET). The secondment was initially supposed to be for
a period of three months with the
possibility of extension The
letter of seconding the applicant to the head office reads as
follows:
“
I am pleased to
inform your secondment has been approved below:
DATE OF EFFECT :
20/01/2003
RANK : Educator PL1
SALARY NOTCH : R92 100
per annum
SALARY SCALE : R78 429-
R92 100
ESTABLISHMENT : GET: Head
Office
SENIORITY : None
The aforementioned
secondment is subject to the provisions of the Educators Employment
Act, 1998 (Act 76 of 1998) Section (9)
the Government Employee’s
Pension Law, 1996 (proclamation no 21 of 1996) the regulations
promulgated in terms of this act
and any amendments to the
aforementioned acts and regulations.
This secondment is
subject to the acceptance thereof within 30 days from the letter.
Unless the reply is received within 30 days,
the offer will lapse.
Should you accept, you are requested to sign the attached annexure B
and return it to the above mentioned
address, for attention Mr J
Ramoshaba: Room 606.
In spite of all
precautions it is still possible that errors may occur. Such errors
will be rectified and overpayments, if any,
will be recovered as
soon as it is discovered.”
In accepting the offer
of secondment to GET the applicant stated that the following:
“
I
hereby wish to inform you that I have decided to accept the post of
EDUCATION (PL1).”
It seems common cause
that the position of PL1 does not exist at the head office where the
second applicant had been seconded
to. It is also common cause that
the position to which the second applicant was seconded to at head
office was higher than PL1.
At the end of three months the second
applicant’s secondment was extended until the end of the year,
2003. The secondment
was extended further in January 2004.
The issue that gave rise
to the dispute arose in 2005 after the respondent advertised two
post of deputy chief education specialists
which were at Post Level
4. The applicant applied for that post but was unsuccessful. Two
people were appointed to the two posts.
However, according to the
second applicant he continued performing the same duties at the head
office even after the appointment.
Towards the end of September 2006
the chief education specialist made a submission to the chief
director recommending that the
applicant be appointed to the post
higher than PL1. It seems also common cause that the applicant
applied again for a higher
post in 2007 but never received any
feedback regarding outcome of the interviews which were conducted
during June 2008.
The applicant says for a
period of seven years that he served at head office on secondment he
undertook several training courses
which were arranged by the third
respondent. He received the training in project management and
financial management. He also
contends that during that period he
performed his duties with excellence and integrity.
The applicant has raised
a formal complaint about his non appoint to level at which he was
performing at the head office during
June 2008. It would appear that
in an attempt to address the problem raised by the applicant the
third respondent offered him
during June 2009 a clerical post at the
head office. If he was to have accepted the offer then he would have
lost employment
under the Educators Employment Act and would have
been employed under the Public Service Act. It was for this reason
that he
rejected the offer. It was following this that the applicant
declared a dispute with the bargaining council. And following the
failure of conciliation the matter was arbitrated by the arbitrator.
The grounds for review
The applicants contend
that the arbitration award is reviewable because the arbitrator
amongst other things failed to consider
the uncontested evidence
that the second applicant performed his duties for the period of
seven years that he served on secondment
to the head office at the
level of DCES post. It would seem the other point raised by the
applicants is that the arbitrator failed
to apply his mind to the
issues which was placed before her in that she is alleged to have
placed unnecessary weight on the issue
of the remuneration which the
applicant received rather than on the issue of whether the applicant
should have been appointed
to the post of DCES.
The applicants further
contend that the arbitration award is reviewable on the following
grounds:
“
47.1 The
arbitrator failed to have regard to, or to consider my evidence and
gave undue weight to the evidence presented on behalf
of the third
respondent;
47.2 The arbitrator
failed to apply her mind to the evidence before her, and
47.3 Even if the
arbitrator concluded that I was not the best candidate for the job,
the arbitrator failed to consider the unfairness
of retaining me in
the effective capacity of a DCES for 7 years without promoting me or
adjusting my remuneration, and failed to
consider whether an award of
compensation would have been appropriate.”
The arbitration award
The basis upon which the
arbitrator arrived at the conclusion that the third respondent did
not commit an unfair labour practice
in not appointing the second
applicant to the post of DCES is correctly summarised by the
applicants in their heads of argument
as follows:
“
15.1
The Second Applicant was a PL1 educator and had been seconded as
such.
15.2 The Second Applicant
could not simply be confirmed in a DCES post, I'd process of
advertising and interviewing had to take
place and it was not The
Second Applicant’s evidence that he was the best candidate for
the DCES position he had applied
for.
15.3 The Second
Applicant’s submissions that the phrase "we are in the
process of making a submission to finalise the
move" meant that
he was to be confirmed in the DCES post could not be accepted because
if it was the case. "A letter
of appointment into a DCES post or
at least an announcement to the effect would have been made in 2003."
15.4 The Second Applicant
was only entitled to the remuneration of PL1 educator and had
therefore been correctly remunerated.
15.5 The letters
confirming the Second Applicant’s secondment stated that there
is no change in the seconded person’s
rank and simulating.
15.6 The Second Applicant
"might have acted for 7 years in the desired post but the onus
was on him to question the numerous
extensions. He authored his own
misfortune by not challenging his not been appointed thereto."
Legal principles
[11] The concept of a
reasonable expectation has generally been applied in cases involving
non-extension of fixed term employment
contract.
1
the test to apply when considering the existence of a reasonable
expectation is an objective one. The onus in this regard rests
with
the employee. In Minister of Land Affairs v GPSSBC and Others,
2
the court held that:
“
14
Generally, a reasonable expectation may arise as a result of a prior
promise, either express or implied, by the employer to renew
the
fixed term contract or as a result of prior practice, for example,
where the employer has habitually renewed the contract.
The onus is
on the employee to prove that a reasonable expectation of renewal
existed.”
The court further held
that:
“
The
test for establishing a reasonable expectation is an objective one.
The court will enquire whether a reasonable employee in
the
circumstances prevailing at the time would have expected the employer
to renew his or her fixed term contract on the same or
similar terms.
A number of factors have been considered by the courts in assessing
whether or not a reasonable expectation exists.”
[12] The factors which
the court will take into account in considering the existence of a
reasonable expectation include:
“
...
the evaluation of the surrounding circumstances, the significance or
otherwise of the contractual stipulation, agreements, undertakings
by
the employer, or practice or custom in regard to renewal or
re-employment, the availability of the post, the purpose of or reason
for concluding the fixed term contract, inconsistent conduct, failure
to give reasonable notice, and nature of employer’s
business.’
3
[13] In
SA Bank of
Athens Ltd v Celliers NO and Others
,
4
the court held that:
“
The
fact that the contract contains a clause permitting renegotiation
does not in itself create a reasonable expectation.
5
Likewise, a clause stating that the contract will not be subject to
renewal does not preclude a challenge that a reasonable expectation
of renewal was created. However, the Labour Appeal Court has held
that when a contract specifically states that it is for a fixed
period and that there will be no expectation of renewal, a party
claiming a reasonable expectation must advance more than 'flimsy
evidence'
Evaluation
[14] The issue which the
arbitrator had to consider in this matter was essentially whether the
second applicant had a reasonable
expectation to be appointed to the
post of deputy chief education specialist subsequent to his
secondment to the head office of
the third respondent.
[15] The case of the
second applicant is that he had reasonable expectation that his
secondment to the head office of the respondent
would be confirmed
after he had been seconded to perform tasks at the LP 4 level and
served at that level for a period of seven
years. He further says
that his expectation was raised when a proposal was made that his
"secondment be formalised."
The other basis upon which the
applicant contends that his expectation was raised is that he had
undertaken a number of training
courses during the period of his
secondment.
[16] In relation to the
courses he attended during the period of his secondment the applicant
conceded during cross examination
that those qualifications where
when not a prerequisite for the position of DES LP4. He further
conceded that the training which
he undertook was never for the
purposes of upgrading him from PL1 to DES PL4.
[17] In my view the
letter recommending the formalisation of the secondment does not
assist the case of the applicant in that it
does not say that he be
moved from PL1 to DES PL4. Even on his own version and also his
subjective view there was no expectation
that he would be
automatically be appointed to LP4. In this respect the second
applicant says the following:
“
My
secondment raised my expectation to get the post, but I knew very
well that I have to contest the post.”
[18] The same applies to
the letter he wrote to the Acting- Director- GET dated 19 April 2007,
wherein he had the following to say
in relation to his secondment:
“
I
was employed in permanent capacity at Namedi Secondary school from
1988. In January 2003, I was seconded to Head Office in the
General
Education and Training (GET) Directorate- IDS. I was deployed to
serve in the Sub Directorate Organisation and Governance.
I have been out of
classroom situation for quite a long period and I have assumed a new
role of dealing with policy. My position
as is, is that I strongly
feel that going better to school would create untold problems as I
was left out in the changes that occurred.
My contribution in the
governance unit is huge and highly valued in that I am responsible
for successfully coordinating RCL activities.
I have bonded with the
past and present RCL members as well as RCL coordinators throughout
the province and see no reason why I
cannot be given a chance to
continue acting on the post and take advantage when it advertised to
contest for it.
I sincerely request your
intervention. With regard to clarify my position. This will assist me
not to be left in limbo.
Hoping for a favourable
consideration for my request.
Yours faithfully."
[19] The proper reading
of the above letter indicates very clearly that the second applicant
was not expecting to be automatically
appointed to the position of
DES PL4 but wanted to continue working at GET. The one thing that is
clear is that the expectation
of the second applicant from the
reading of the letter was to have the post he was seconded to be
advertised and for him to compete
for that post. The expectation of
the second applicant was not for him to be appointed to the position
at DES LP4 level but that
the he be allowed to "continue acting
on the post until it is advertise and I contest for it."
[20] The view that the
second respondent failed during the arbitration proceedings to show
that he had reasonable expectation to
be promoted to DES LP4 is
further supported by the submission made on his behalf during the
closing argument. There is no mention
during that submission that the
second applicant had an expectation that he was supposed to have been
promoted to the post of DES
PL4. In this respect the representative
of the second applicant had the following to say:
“
The department has
unfairly treated Mr Soke by keeping him in this unit for seven years
without remunerating him and making him
to perform duties that are
not meant for his level and expect him to go back to school. By the
way Ms Commissioner there is no
school for improving levels, levels
are only attained through promotional posts. The seven years
experience that Mr Soke gained
and the evaluation conducted by the
DES in his unit makes him to qualify to perform the functions has
been performing for 7 years.”
[21]
The approach adopted by the Commissioner must be understood in the
context where as a matter of general principle there is
no automatic
right to promotion for a person acting in a senior position when that
position becomes available.
6
The
approach has to also be understood in the context it the prerogative
of an employer to appoint or promote an employee who it
considers
best or most suitable for the position.
7
In my
view the arbitrator cannot be faulted for the approach she adopted in
dealing with the dispute. She applied her mind to the
facts which
were before her and also applied the relevant test for determining
whether the second applicant has discharged his
duty of showing that
the third respondent had created a reasonable expectation by
seconding him to work at the head office. The
conclusion reached by
the arbitrator that the third respondent did not commit an unfair
labour practice is well reasoned, rational
and reasonable.
[22] In my view the
secondment applicant has failed to make out a case warranting
interference with the arbitration award. I do
not however belief that
in the circumstances of this case cost should be allowed to follow
the results.
Order
[23] In the premises, the
applicants’ application to review and set aside the arbitration
award made under case PSES 497–
08/09 GP dated 14 August 2009
is dismissed with no order as to costs.
______________________
Molahlehi J
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant :Adv H
Barnes instructed by Cheadle Thompson & Haysom
For the Third Respondent
:Adv V P Ngutshane instructed by State Attorney
1
In
this regard
Section 186
of the
Labour Relations Act of 1995
provides
that:
“
(1)
Dismissal means that …(b) An employee 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.’
2
2011
ZALCJHB 162 (LC).
3
Dierks
v University of South Africa
(
1999) 20
ILJ
1227 at 1246.
4
(2009)
30
ILJ
197
(LC).
5
6
See
Gurarnah v South African Weather Service [2004] 4 BALR 454 (CCMA)
and Limekaya v Department of Education [2004] 5 BALR 586
(GPSSBC).
7
See
authorities referred to in Labour Law Through Cases- Service no 17
page LRA 8-17.