IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not r eportable
Case no: JR 1731/ 21
In the matter between:
NEW MODEL PRIVATE COLLEGE Applicant
And
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
1st Respondent
GLORIA NCALA , N.O.
2nd Respondent
PROSPER MAPHOSA & OTHERS
3rd to 26th Respondent s
Heard: 3 September 2024
Delivered: 3 March 202 5
(This judgment was handed down electronically by circulation to the parties'
representatives by email. The date of hand- down is deemed to be on 3 March 2025 )
JUDGMENT
MYBURGH, AJ
2
Introduction
[1] In her arbitration award, the second respondent ( the commissioner) found
that the individual respondent s (the educators) had been unfairly suspended by
the applicant (the S chool ) and awarded them each 12 months’ salary as
compensation. The finding of an unfair suspension was premised on an antecedent
finding by the commissioner that the educators were in the employ of the Schoo l
when they were suspended.
[2] The School now seeks to review the award in terms of section 145 of the
LRA.
The common cause factual matrix
[3] The educators had worked for the S chool for several years on fixed- term
contracts that had been consistently rolled over.
[4] In 2020, the parties entered into a 12- month fixed -term contract (for the year).
(This contract was entered into in the context of the Covid- 19 pandemic and
contained terms that may have broken the chain of renewals, but this was not pursued at the arbitration.)
[5] On 15 December 2020, the educators were issued with letters by the S chool
reading as follows under the heading “End of contract of employment” :
“We refer to the above contract of employment that you have with the S chool.
We would like to remind you that the contract ends on 31
st December 2020.
Please note that, subject to learner enrolment numbers for 2021 and other
business constraints including C orona virus related challenges, we be (sic)
employing based on the year enrolment.
In the premises, you are at liberty to apply to the S chool to be considered to
appointment in your fiel d for the 2021 school period. If you are interested,
please submit an application letter in writing on or before 31st December 2020.
3
Please note that if your services are required, the school will inform you so
telephonically. It is therefore important that in your application letter you
supply contact numbers on which the S chool can reach you, including
alternative contact numbers.
Otherwise, the school wishes to take this time to heartly thank you for your services for the duration of your contract.”
[6] The educators all then applied for positions in 2021, but they received no
response from the School.
[7] On 24 December 2020, Ms Mhlanga (the principal of the Junior School ) sent a
WhatsApp advising that the School would open on 13 January 2021. The Whats App
was received by the educators (as they remained on a general WhatsApp group) .
[8] On 29 December 2020, Ms Mhlanga sent a WhatsApp requesting staff “to
come and collect your payslips and letters tomorrow”. The WhatsApp was, again, received by the educators (and all other staff) .
[9] Also o n 29 December 2020, the School addressed letters to the educators
reading:
“On the 2
nd December 2020 you participated in an unlawful and/or
unprotected strike and you did so without notifying the S chool to enable the
School to make necessary arrangements to ensure that learners, staff,
parents and visitors were not compromised in view of the Covid- 19 health risk.
As a result of your actions learners and your duties were left unattended and this posed a huge health risk to learners, staff, parents and visitors to the School.
Please note that your action constitute misconduct as defined in paragraph 3.13 of your contract of employment, entitling the S chool to institute
disciplinary action against you.
Kindly be advised that the School is taking legal advice on the matter and
reserves its right to institute disciplinary action against you.”
4
[10] It appears that the educators received these letters when they arrived at the
School on 30 December 2020 (as per Ms Mhlanga ’s WhatsApp of the previous day).
[11] On 31 December 2020, the educators’ 12- month fixed -term contracts expired.
[12] On 4 January 2021, the educators were paid for the month of December
2020. Their payslips reflected their “next pay day” as being 4 February 2021. (This
annotation appears to have generic in nature.)
[13] On 6 January 2021, Mr Mafu (the principal of the High School) sent a
WhatsApp to four people, including Mr Dewa (one of the educators
1), advising them
that “the social distance markings need to be redone in preparation for the opening
of the School .”
[14] On 7 January 2021, Mr Dewa attended the School , but could not undertake
the marking exercise as the necessary materials had not been purchased.
[15] On 10 January 2021, Mr Mafu sent a WhatsApp advising the six HODs ,
including Mr Hlabangana (one of the educators
2), of a meeting scheduled for 09:00
the following day .
[16] On 11 January 2021, the HOD meeting did not go ahead.
[17] On 12 January 2021, Mr Mafu sent a further WhatsApp advising that “the staff
meeting has been postponed” . This also appears to have been received by the
educators (who remained on the general WhatsApp group).
[18] On 13 January 2021, the School opened, but the educators were not
reengaged.
1 He testified at the arbitration.
2 He also testified at the arbitration.
5
[19] On 4 February 2021 – three weeks later – the educators completed their
referral of an unfair suspension dispute to the CCMA . In their referral, they
summarised the facts of the dispute as follows:
“We were given letters on the 29th of December 2020 that the School is
instituting disciplinary action against us . Since then have been wating for the
date but the School has already employed new staff and pupils are there
learning.”
[20] Significantly, it is contended in the CCMA referral that the dispute (i.e. the
unfair suspension) arose on 31 December 2020. No suspension occurred on this
day; instead, it is the date upon which the educators’ fixed- term contracts expired.
The commissioner’s award
[21] The commissioner framed what she termed the “destructive versions” before
her as follows:
“[T]he [educators] testified that they were still employees of the [School] and
were unfairly suspended, [ w]hilst it is the [School’s] contention that the
[educators] were never suspended but their contracts came to an end, thus they were no longer employees of the [School].”
[22] The commissioner went on to find that these five factors supported the
educators ’ belief that the employment relationship continued (post 31 December
2020) and that they were suspended:
a) Firstly, the letter of 29 December 2020, with the commissioner finding that
it was improbable that the School would have gone through the time and
trouble of writing the letters “to employees whose contracts were ending in just two days”.
b) Second ly, the School’s failure to remove the educators from the
WhatsApp group.
c) Thirdly , and related to this, the call for one of the educators to assist with
Covid -19 markings, and another to attend the HOD meeting .
6
d) Fourthly, the testimony of Ms Mhlanga (the sole witness for the School) to
the effect that when Ms Maphosa (one of the educators3) phoned her on
27 January 2021 to find out what was happening, she told her that the
School was still seeking legal advice.
e) Fifthly, the failure by the School to provide the educators with their UI F
forms, as confirmation that their contracts were not renewed.
[23] It is not clear to me whether all of these factual findings reasonably support
the commissioner’s conclusion, and it does appear that the commissioner may have
left some material facts out of account. But given the approach that I have adopted
to the matter, there is no need to explore this any further.
[24] Reverting to the scheme of the commissioner’s findings, she then proceeded
to have regard to a judgment of this court4 dealing with section 186(1)(b) (i) of the
LRA. The section provides that a “dismissal ” takes place in circumstances where an
employee on a fixed- term contract “reasonably expected” the employer to renew a
fixed -term contract on the same or similar terms , but the employer offer ed to renew it
on less favourable terms or did not renew it .
[25] Drawing on this judgment, the commissioner found that –
“the ‘rolling over ’ of the contract for a period of nine in some cases ten years,
had also established a reasonable expectation that the contracts will be renewed and the reapplying for the position was merely an exercise to confirm
staff complement for the following year. ”
[26] In the light of this, the commissioner proceeded to find that the educators
“discharged the onus of proving their [employment] relationship with the [School]” ,
and they “ are still employees of the [School] ” (own emphasis).
3 She also testified at the arbitration.
4 King Sabata Dalindyebo Municipality v Commission for Conciliation, Mediation & Arbitration & others
(2005) 26 ILJ 474 (LC).
7
[27] With this as her point of departure, the commissioner went on to find that the
educators’ “precautionary suspension” was unfair, inter alia, because “no explanation
was given to [them] to be at home for over six months now and as to why their
services were being suspended for such a long time.”
[28] Turning to relief, the commissioner held that the School must pay the
educators the “remaining term of their contracts , January to December 2021”5 – this
in circumstances where she had found that the School had replaced them. It is clear
from this that the commissioner, in effect, determined the existence of a new 12-
month fixed- term contract for the educators covering the 2021 academic year.
The principal bas is for the award being reviewable
[29] Predictably, much of the argument in this matter centred on whether , properly
construed, the educators’ remedy lay in challenging their unfair dismissal , instead of
their unfair suspension.
[30] Had the commissioner presided over a n unfair dismissal dispute arising from
an alleged dismissal in terms of section 186(1) (b), she may well have found that the
educators had a reasonable expectation that their fixed -term contracts would be
renewed,
6 and thus that the School’s failure to renew the fixed- term contracts7
constituted a dismissal . She might then have gone on to find that there was no fair
reason for the dismissal, and awarded 12 months’ compensation (if appropriate).
[31] However, the commissioner did not preside over an unfair dismissal dispute
arising from a dismissal in terms of section 186(1)(b), but rather over an unfair suspension dispute, which was premised on a contract of employment
8 actually
being in existence on the date of the educators’ suspension. In my view, the fact that
the LRA , in effect, deems the failure to renew a fixed- term contract where a
5 The award was issued on 12 July 2021, and varied on 13 July 2021.
6 Or that they be retained on an indefinite basis.
7 Or retain the educators indefinitely.
8 Or at least an employment relationship.
8
reasonable expectation of renewal exists as constituting a “ dismissal ”, does not
mean that – in law – the failure to renew a fixed -term contract in such circumstances
per se gives rise to the actual existence of such a contract (capable of being
suspended ).
[32] In my view, the commissioner thus committed a material error of law in finding
that because the educators had a reasonable expectation of the renewal of their
fixed -term contracts, they were “ still employees of the School ”, and thus capable of
being suspended.
Order
[33] Accordingly, the following order is made:
1. The arbitration award issued by the second respondent is review ed
and set aside, and substituted with an order that the 3
rd to 26th respondents
were not unfairly suspended by the applicant;
2. There is no order as to costs.
Myburgh, AJ
Acting Judge of the Labour Court of South Africa
Appearances
For the applicant: Adv M Mafu instructed by Koena Mpshe Attorneys
For the 3rd to 26th respondents : Mr D Lebethe of Ditheko Lebethe Attorneys