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[2018] ZALCJHB 252
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Minister of Basic Education v Mtongana and Others (JR398/15) [2018] ZALCJHB 252 (31 July 2018)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: JR 398/15
In
the matter between:
MINISTER OF BASIC
EDUCATION
Applicant
and
T MTONGANA
First
Respondent
GENERAL PUBLIC
SERVICE
SECTORAL
BARGAINING COUNCIL
Second
Respondent
MTOMBEKHYA
SESANA (
N.O.
)
Third
Respondent
Heard
:
23 November 2017
Delivered
:
31 July 2018
Summary:
(Review – appointment on fixed term contract not equivalent to
transfer or secondment – termination
arising on expiry of
contract – no expectation of renewal established –
termination not a dismissal)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application to review an award in which the arbitrator
found that the late Mr L Mtongana’s employment was unfairly
terminated at the end of an expiry of a two-year contract he entered
into with a unit falling under the Department of Basic Education
(‘the Department’). The arbitrator ordered the applicant
to reinstate Mr Mtongana (‘Mtongana’), in a position
similar to that of a Deputy Director: Initial Teacher Training and to
pay him compensation for the salary he had lost since his
dismissal.
Payment was to be made within 30 days of the date of the award, 17
December 2014. The Department now seeks to review
the award.
[2]
As Mtongana has passed away, his estate, as represented by his
executrix, Ms T Mtongana, continues to oppose the review. Ms
Mtongana
was substituted as the first respondent in the proceedings for
Mtongana, in terms of an order dated 30 August 2016. Ms
Mtongana has
also brought an order to make the arbitration award an order of
court.
Background
[3]
The arbitrator found that when Mtongana took up a two-year
appointment with the National Education Evaluation and Development
Unit (‘NEEDU’) he had applied for, he was not advised
that taking up the appointment would lead to the termination
of his
existing permanent employment contract with the applicant.
Consequently, the arbitrator found that Mtongana’s employment
was terminated by the applicant at the end of his two-year contract
when in fact, he ought to have remained permanently employed.
As a
result, she ordered his reinstatement in a position similar to that
he previously held with back pay.
[4]
Mtongana was employed by the Department since 1986. After responding
to an advertisement and successfully completing the recruitment
process Mtongana was appointed to the post of Team Leader East London
on a two-year renewable contract starting from the date he
assumed
duties. The preamble to the advertisement read:
In
20[illegible] a ministerial committee was appointed to investigate
and advise the ministry on how the quality of education can
be
enhanced through an independent evaluation. Work of this committee
culminated in the establishment of a Unit, commonly known
as the
National Education Evaluation and Development Unit (NEEDU). The main
task of this unit is to provide the ministry with an
authoritative,
analytical and accurate account of the state of education in South
Africa, in particular, on the status of teaching
and learning in all
schools. To accomplish this task,NEEDU is inviting applications from
interested individuals, with the required
expertise and experience,
to be appointed as NEEDU evaluators in all provinces
on a two-year
renewable contract, subject to satisfactory performance
…
(emphasis
added)
[5]
Mtongana’s letter of appointment stated:
CONTRACT
APPOINTMENT
I
am pleased to inform you that your contract appointment post of team
Leader Eastern Cape province: National Education Evaluation
and
Development Unit (‘Needu’)
on a two-year renewable
contract
has been approved with effect from your date of
assumption of duty.
…
You are requested to
confirm in writing if you accept the post and conditions of
service attached to it
…
(emphasis
added)
The
letter also provided him with the contact details of the person to
communicate with if he had any further inquiries “concerning
his salary or other appointment benefits”.
[6]
A few days after being given notification of his appointment he wrote
to the manager of Staffing Services in the Department
stating that he
had accepted the offer of employment to the unit “albeit on the
same level (Deputy Director)”. He enquired
whether his pay
point would remain same as it was where he was currently attached to
Initial Teacher Education. Subsequent to his
request to be retained
on the same level that he was on previously, a motivation was made
that because his contract appointment
was within the Department, and
is continuous, as well as to ensure that his living standard was not
affected it was proposed “…that
his salary be retained
and the salary level and package
that was paid to him by the
department during his permanent appointment”
(emphasis
added).
[7]
On 21 January 2014, Mtongana was notified that his contract had
expired and would not be renewed because of the poor performance
of
his unit. The two-year contract expired on 23 January 2014.
[8]
Mtongana disputed the reasons for non-renewal of his contract and
asserted his status as a permanent employee of the Department.
He
ultimately appealed to the Minister emphasising the unfairness of the
termination. In her response dismissing his appeal, the
Minister set
out the circumstances of his appointment and asserted that, amongst
other things:
8.1
Mtongana accepted appointment to the unit and there was no proviso on
the appointment and no reference
to being redeployed or seconded.
8.2
The Minister asserted that Mtongana signed a 24 month
performance-based contract and therefore
it was incorrect that he was
a permanent employee of the Department. The letter further claimed
that he was deemed to have resigned
when he took up the new
appointment with the unit because he could not have two contracts
that were concurrent and the new contract
superseded his previous
one.
[9]
When the matter was referred to arbitration, the issues in dispute
were characterised, firstly, as whether his employment status
with
the department was contractual or permanent and, secondly, whether
the termination of his employment was substantively and
procedurally
fair. The employer accepted the onus of proving the fairness of his
termination.
The
arbitration award
[10]
The arbitrator initially identified the issue she had to decide as
whether by taking the two-year contract, the applicant relinquished
permanent employment or whether his move to NEEDU was a transfer or
an appointment. Later, before starting to analyse the evidence
and
argument, the arbitrator characterised “(t)he main issue [in]
this matter was whether the applicant was aware that signing
the
two-year contract at NEEDU resulted in termination of his permanent
contract with the respondent or not.”
[11]
In her summary of the evidence, which adequately reflects most of the
evidence before her, the arbitrator recorded:
11.1
The Deputy Director of Staffing Services: Personnel, Ms B Le Roux
(‘Le Roux’) testified that Mtongana’s
status was
translated from a permanent to a contractual employee, which would
not have been the case if he had been seconded. She
conceded that his
letter of appointment did not say that he would be relinquishing his
permanent status but claimed that this was
explained to him during
the interviews. However, she could not tell whether he was advised
that the expiry of his contract would
lead to the termination of his
permanent employment or not. She also claimed that he asked that his
pension moneys only be paid
after the expiry of his two year
contract, which he disputed. Le Roux also had made a note recording
Mtongana’s request to
retain his normal paydate on the 15
th
of the month, instead of the end of the month when contract employees
were paid. This request was acceded to.
11.2
The Director of the Labour Relations, Mr D Ntloane (‘Ntloane’),said
that he advised Mtongana of the
consequences of taking up two-year
contract and raised his concerns with him about the possible
non-renewal of the contract. He
had advised him to get a secondment
to ensure that he stayed within the system. He claimed also to have
asked the HR staff to delay
giving Mtongana his appointment letter
before he had advised him of the risk he was taken. Mtongana disputed
this also. Had he
been seconded, his permanent status would have been
suspended. Recommendations had been made to maintain his salary and
its former
level.
11.3
The scribe at the job interviews, an Assistant Director: Recruitment
and Selection, Ms H Nemabaka, testified that
the chairperson of the
panel advised the candidates, including Mtongana, that the positions
were for a two-year period and they
the applicants had said they did
not have a problem resigning from their current jobs. She confirmed
the correctness of minutes
of interviews which recorded that.
11.4
The Deputy CEO of NEEDU, who had been a panellist in the job
interviews, testified that the most common question
from the
candidates was to ask about their employment status and whether they
would have to resign or not, but he could not specifically
remember
whether the applicant had asked that question.
11.5
Mtongana denied being told that he had to resign before taking up the
new position. He did not ask about resigning
because he was already
employed with the respondent at the time and expected that he would
return to his old post or another available
post at the same level
when the contract expired. He also did not withdraw his pension at
the time of taking up the new appointment.
[12]
The arbitrator found that a concession by the applicant’s
witnesses that they treated him differently from the other
candidates
because he was already on the system was a factor that the respondent
ought to have taken into consideration and ensured
that he was
advised to resign from his permanent position. To avoid any
misunderstanding he should have been ensured that he submitted
his
letter of resignation and that his pension was paid out. The
department also should have ensured that his salary advice was
altered to reflect an employment commencement date in January 2012.
She concluded that the failure to attend to these things might
have
misled the applicant.
[13]
The arbitrator accepted that if Mtongana had not already been
employed by the applicant at the time of the contract been concluded,
the letter of appointment stating that the contract was only two
years and that his employment would end if it was not renewed,
‘would
have made sense‘.
[14]
She also accepted that an incidental email directly confirming his
permanent employment status issued by an employee who would
not have
known of his circumstances, corroborated his version. The arbitrator
appeared to agree that Mtongana could not be employed
under two
contracts concurrently but was of the view that this did not take
account the nature of the relationship between the
parties which was
an unequal one. The arbitrator also felt that the applicant could not
rely on this principle when it suited them
yet flout its own
principles and policies whenever convenient to do so. In other words,
it should not have allowed him to continue
working without resigning
which was in contravention of its own rule that employees had to
resign before taking up a position with
NEEDU.
[15]
The arbitrator also held that the applicant had failed to advise
Mtongana that taking up the position would amount to termination
of
his permanent employment and that he did not relinquish it when he
took up two-year appointment. She then concluded that the
dismissal
was unfair.
Grounds
of review
[16]
Firstly, the department contends that when the arbitrator embarked on
her analysis and evaluation of the evidence and argument,
she wrongly
characterised the issue before her: the issue she had to decide was
whether or not Mtongana had been dismissed or whether
his contract
had expired through the effluxion of time, not whether he understood
the terms of the contract or whether he relinquished
his permanent
employment when he took up the two-year appointment. This required
her to consider the ordinary meaning of the words
in the written
contract. Had she done so, she would have concluded that he was
employed on a two-year fixed term contract that
expired through the
effluxion of time, and accordingly Mtongana was not dismissed when it
expired.
[17]
In the alternative, the department contends that even if the
nonrenewal of Mtongana’s contract was construed as a dismissal,
the arbitrator could not reasonably have concluded that his dismissal
was unfair. Apart from claiming that the arbitrator considered
irrelevant evidence, she provided no explanation why the dismissal
was unfair. On the face of her award, having found that Mtongana
was
dismissed, she simply concluded on the basis of the dismissal that it
was also unfair. Her conflation of the dismissal with
the unfairness
of the dismissal is evident from her failure to provide any reasons
why she found the dismissal was unfair, once
she concluded that
Mtongana had been dismissed.
[18]
In concluding that Mtongana was not advised that by taking the
position at NEEDU entailed the termination of his permanent
employment status, the arbitrator simply ignored the material
evidence of Le Roux and Ntloane, and she could not have rationally
reached this conclusion had she considered that evidence.
[19]
The arbitrator’s reasoning that fixed term appointment should
only have been construed as such if Mtongana had not been
employed by
the Department at the time he was appointed, was illogical because
there was nothing to prevent an employee taking
up a contractual post
despite being permanently employed at the time. Taken to its logical
conclusion, the arbitrator’s reasoning
would mean that a
permanent employee cannot enter into a fixed term contract, which is
an absurd proposition.
[20]
The arbitrator also misconstrued the onus in relation to the question
of determining if Mtongana had been dismissed or not.
She ought to
have recognised that the onus fell on Mtongana to prove that he had
been transferred or seconded if he maintained
that his permanent
employment relationship persisted, despite accepting that two-year
appointment.
[21]
In finding that a letter sent by a junior employee on 12 July 2013
corroborated Mtongana’s version that he was still
permanent
employee, the department alleges that the arbitrator acted
unreasonably because she failed to consider that the employee
in
question had no authority to determine Mtongana’s employment
status and the arbitrator ignored the evidence of Le Roux
and Ntloane
about what Mtongana knew in February 2012, in arriving at this
conclusion.
[22]
The arbitrator irrationally rejected the legal effect of the
principle that Mtongana could not be employed under two contracts
concurrently on the irrelevant basis that the relationship between
Mtongana and the department was an unequal one.
Evaluation
[23]
At the outset, it must be mentioned that whether or not Mtongana’s
employment came to an end by virtue of the effluxion
of the fixed
term contract or whether he was dismissed when it expired is an
objective matter as it deals with a jurisdictional
question. Thus the
court must determine simply whether the arbitrator was correct in
concluding that Mtongana was dismissed rather
than his employment
terminating by agreement under the two-year contract. Assuming it is
found that the termination of Mtongana’s
service at the end of
the fixed term contract did amount to a dismissal then the court is
required to consider if the conclusion
that his dismissal was unfair
was one no reasonable arbitrator could have reached on all the
evidence before her.
[24]
In
Food & Allied Workers Union v Commission for
Conciliation, Mediation & Arbitration & others
, it
was held that:
'What
is accordingly very clear is that, where a court, or a commissioner
of the CCMA for that matter, is tasked to interpret a
written
contract, or as in the present case, a collective agreement, it must
give to the words used by the parties their plain,
ordinary and
popular meaning and if there is no ambiguity in the words of the
contract, they must be given their plain, ordinary
and popular
meaning.'
[1]
[25]
On the face of the fixed term contract, there was no room for
ambiguity about its nature, namely that his employment was for
a
fixed term of two years but could be renewed. When he accepted the
appointment, the only qualification he sought was to retain
his
previous salary scale which was higher. The appointment letter made
no mention of his new position being a secondment or a
transfer. On
an ordinary construction of the contract he relinquished his
permanent post for a fixed term contract one. At best
for Mtongana he
needed to prove that his appointment amounted to a transfer or a
secondment. He advanced no cogent evidence in
support of either such
alternatives, and did not even claim that his appointment at NEEDU
took the form of a transfer or secondment.
He simply maintained that
his permanent employment status was unchanged by the two year
appointment. However, nothing in the wording
of the appointment
letter suggests that.
[26]
Moreover, to succeed in proving that the his new appointment did not
alter his current permanent employment, in the absence
of an express
term, he would have to have proven the existence of a tacit term or a
term implied by law, which operated during
the fixed term contract.
The real difficulty Mtongana had is that, the contract he was
appointed under specifically dealt with
the duration of his
employment and to infer that it was subject to a tacit term that
there was another ongoing permanent employment
relationship that
would revive at the end of the two year period if the fixed term
contract was not renewed would clearly be at
odds with the fixed term
period of employment specified. As Bradfield
et al
express
it in
The Law of Contract in South Africa
:
Nor
can a tacit term be imported on any question to which the parties
have applied their minds and for which they have made express
provision in the contract, so no tacit term can be imported in
contradiction of an express term. The principle was well
expressed by Van Winsen JA in
SA Mutual Aid Society v Cape Town
Chamber of Commerce
:
‘
A
term is sought to be implied in an agreement for the very reason that
the parties failed to agree expressly thereon. Where the
parties have
expressly agreed upon a term and given expression to that agreement
in the written contract in unambiguous terms no
reference can be had
to surrounding circumstances in order to subvert the meaning to be
derived from a consideration of the language
of the agreement only.
See
Delmas
Milling Co Ltd v du Plessis
1955 (3) SA 447
(A) at 454.
[2]
[27]
Even if regard is had to the surrounding circumstances, Mtongana
acknowledged himself in his application for the new post that
he
would have to give one month’s notice before he could take up
the appointment. Le Roux’s evidence that she and Mtongana
had
interacted over retaining his pay date despite his new status as a
contract employee was plausible and strongly supports the
contention
that he was not unaware of the change in his employment status. The
only document he could rely on was a document issued
towards the end
of the two-year appointment, in circumstances where it is plausible
that the person issuing it relied on the pay
code which appeared on
his payslips to determine his employment status, which had been
retained for his own convenience so that
his pay date would not
alter. In any event, that occurred late in the two-year period of the
contract and could hardly be construed
as a representation by the
employer which misled him into entering the contract.
[28]
It emerged during the evidence that the attraction of the post for
Mtongana was that he would be located in the Eastern Cape
rather than
in Pretoria where he was stationed in his permanent capacity. It may
have been that Mtongana was confident of future
renewals of the
contract and it is true that the contract spoke of it being renewable
and that the advertisement said it was renewable,
subject to
satisfactory performance. However, Mtongana’s entire case in
the arbitration did not rest on whether he had an
expectation of it
being renewed, but solely on the basis that the termination of the
two year contract did not terminate his permanent
employment
relationship with the Department, because it never ceased when he was
appointed to the contractual post.
[29]
In the circumstances, it is not necessary for me to go into the other
grounds of review because I am satisfied that Mtongana’s
service terminated when the contract expired. Moreover, because of
the way in which Mtongana conducted his case, he did not lay
an
evidentiary basis for inferring that he had a reasonable expectation
of its renewal. Consequently, it was not open to the arbitrator,
nor
is it open to the court, on the evidence available to conclude that
the termination of his contract constituted a dismissal
because it
was not renewed despite him having a reasonable expectation that it
would be.
Costs
[30]
I accept that the opposition to the review application was
bona
fide
given Mtongana’s success in the original application
even if it would have been necessary to substitute the relief of
reinstatement
had the review application been dismissed. In the
circumstances, it would not be appropriate to make an adverse cost
award against
the first respondent.
Order
[1]
The arbitration award of the third respondent dated 17 December under
case number GPBC 812/2014,
is reviewed and set aside.
[2]
The third respondent’s findings are substituted with a finding
that the late Mr Mtongana’s
termination of service on 23
January 2014 did not constitute a dismissal by the applicant but
occurred as a result of the expiry
of his fixed term contract.
[3]
No order is made as to costs.
_______________________
R
Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
L
Pillay instructed by the State Attorney (Pretoria)
FIRST
RESPONDENT:
M
Simoyi instructed by Gubevu Hlalukana Inc.
[1]
(2007) 28
ILJ
382 (LC) at para 35. See also
National
Union of Mineworkers v Commission for Conciliation, Mediation &
Arbitration & others
(2013) 34
ILJ
2913 (LC) at 2927-8 at paras 58-63.
[2]
Butterworths, 7
th
Edition (2016) at 197-8 (footnotes omitted).