Racism claims rock Maru A Pula School
Innocent Selatlhwa | Monday February 26, 2024 06:00
Giving evidence before Justice Gaedupe Makgato of the Industrial Court, the 41-year-old said he had been a teacher for the school from 2007, performed well but was shocked when he was told his contract would not be renewed over eight months before it expired. To date, his position has not been filled
Unilateral variation of contract
In December 2008, Tshwene was offered a fixed term contract of three years spanning from January 2009 to 31 December 2011 as a Setswana and History teacher. The applicant’s contract was subsequently renewed four times with the last ending on 31 December 2022.
The contract that is the subject of the dispute before court is the contract/s spanning the period January 2020 to December 2022 which was entered into by the parties on or about 11 November 2019 and January 2020 respectively. “After signing the contract reached by consensus, a material term of the contract was that the Applicant would be remunerated a basic monthly salary of P29, 630.00, however on the pay day of January 2020, that is about two months after entering into the contract, the Applicant was shocked to see that he was paid only P21,166.00 which was P8,464.00 less than what was agreed in the contract. Upon realising that his salary was short, the Applicant approached the principal’s secretary and informed her about the deficient salary but the Applicant did not get any answer from her as to why his salary was short,” reads Tshwene’s statement of case.
The secretary is said to have referred Tshwene to the school bursar, but he still received no clear answers. Tshwene told the court that after several inquiries and frequenting the bursar’s and secretary’s offices, he was instructed by the secretary during one of his several visits that he must sign a new contract because the contract he had originally signed had a typo that erroneously stated his remuneration. “I reluctantly signed the second contract under duress for fear of losing my employment if I objected. However, the second contract was forced upon me for signature by the secretary without being granted an opportunity to negotiate and reach consensus with the suitable authority and have a meeting of the minds with MAP or the principal of the school, at the time, being one Andrew Taylor,” he said.
According to Tshwene, a few months after he commenced his duties, around May 2020, MAP employed another teacher, one Sethunya Ponto, to join the Setswana Department of which he (Tshwene) was already HoD. The salary of the new employee exceeded his, despite him being the HoD, qualified to teach Setswana and having significantly more experience in teaching Setswana which Ponto did not have. Tshwene said he inquired from the deputy principal as to why he was being remunerated significantly below his subordinate (around P10 000.00 less) but was informed that: “It happens”. “The Applicant earned a basic salary of P21 166.00 from January 2020 to December 2022, (a shortfall of P8, 464.00) per month. The Applicant is therefore owed P304, 704. 00 by the Respondent being the difference between the amount he was remunerated from January 2020 (P21 166. 00) to 31 December 2022 and the amount he was entitled to as per the original contract of employment (P29, 630. 00),” reads Tshwene’s statement of case.
Unfair dismissal?
According to Tshwene, during the course of the final contract, he experienced victimisation in the form of racial and other forms of discrimination as well as a litany of other unfair labour practices on the part of MAP, which prompted him either acting alone or in some instances, in concert with other employees, to lodge queries with the management of MAP. Amongst the issues he suspects he is being victimised for, Tshwene said, was speaking up against rampant racism at the school. “There is a lot of racism at that school. Batswana teachers are mistreated and always fear to speak out. They mostly employ only whites and foreigners. Batswana teachers once wrote a letter of complaint to the management with those who were scared to lose jobs abstaining. We were complaining about what he had said at a meeting with teachers where he said Batswana graduate teachers lacked content and that foreigners are better than them. He even slammed the localisation programme by government saying it was a vote buying ploy. He also said Batswana are not fluent in English. He would then call a meeting and apologised for the remarks,” he said. Tshwene said the racism at the school was high alleging that out of seven top management positions, only one is occupied by a Motswana. He said since the localisation policy was encouraged, the school has about 20 Batswana teachers and over 70 foreign teachers. He also said the school kept elderly white people who are beyond the retirement age while there are Batswana who can do the jobs. “They even falsify documents when applying for work permits so they can keep their people at work while Batswana can easily do such jobs as being secretary,” he said. He said during the period of the contract, he received positive feedback from the students through the Principal, only to later be shocked to be accused of mistreatment. “Sometime in 2020, among one of the several unfounded accusations, MAP accused me of mistreating a student (name withheld), even though it was clear that MAP or its agents merely concocted such accusations as a ploy to get rid of me.
The concerned scholar’s parent came to my rescue by informing the Respondent of the true nature of their child’s case, which had nothing to do with my behaviour in any manner, shape or form. I lodged a query and made a follow-up with MAP via a letter concerning the unfounded and defamatory allegations and the manner the matter was handled wherein other members of staff were made aware of the “serious allegations” against me. Having received the complaint, MAP wrote a letter of apology to me regretting its decision to falsely accuse me and mishandling the matter,” he said. As if that was not enough, Tshwene said in early 2022, Evans, who had been at MAP for a few months at the material time, summoned Tshwene to his office and informed him that the school had been secretly investigating him for mistreating his students especially females. The principal reportedly further warned Tshwene that he as the principal was aware that the he had been summoned in 2020 for such misconduct. “It was shocking to me that the new principal was accusing me of a matter which MAP had already apologised for Nonetheless, I was never given an opportunity to voice my side of the story as the new principal merely sought to convey his accusations and ordered me to leave his office. Tshwene believes therefore that plans had been in motion since 2020 to get rid of him and replace him with Ponto who had joined his Department as a Setswana and Geography teacher. “Notwithstanding the fact that Ponto did not hold a qualification to teach Setswana and had a length of service significantly less than that of myself in the subject, MAP remunerated her at a significantly higher rate than me even as she was a my subordinate. According to Tshwene, part of the duties of the HoD as per the MAP’s job description is to assist in the recruitment of new teachers in the department.
However, he being the HOD was never involved in the process of recruitment of teachers within the department, but Ponto was the one who had been made by MAP to usurp the duties of the HoD even while he was the substantive HoD. “On or about 4 April 2022, Evans, informed me via a letter that my contract would not be renewed upon expiry on 31 December 2022. No reason or reasons or anything resembling a reason or reasons was advanced by MAP to justify the decision not to renew my contract of employment beyond 31 December 2022. I was aggrieved by the decision of the school not to renew my contract but proceeded to accept the letter of non-renewal under duress. I contacted MAP via a letter dated 6th May 2022 and voiced my dissatisfaction with the mistreatment that had been meted on me over the period of my employment,” he said. He said despite his request for reasons for the non-renewal of his contract both in person and through his erstwhile legal representatives, MAP has without just cause, refused to provide reasons. Tshwene said the school then proceeded to replace him with Ponto who he said is not qualified for the position and placing her at an even higher salary than him despite the fact that even while she was in a role junior to his, she was inexplicably earning a basic salary significantly higher than his. “The non-renewal of my fixed term contract constitutes an unfair dismissal for the following reasons that I had an objectively reasonable expectation that the contract would be renewed based on the following grounds: There exists a fixed-term contract; the contract was renewed four consecutive times by the employer; the employer replaced me with another employee who earns an even higher salary than me; and the school still required the services of a Setswana teacher at the time the contract was not renewed and neither cited operational requirements nor any other ground for not renewing the Applicant’s fixed term contract. Based on the above, it is clear that I would have expected as a reasonable employee, in the circumstances prevailing at the time, that the school would renew my fixed-term contract on the same or similar terms,” he said. Reliefs sought Through his attorney Dr Tshepang Makwati, Tshwene wants an order declaring as invalid and setting aside in its entirety, the second contract entered into by the parties in January 2020. He also wants an order declaring that the original contract signed by the parties in November 2019 is the only valid contract of employment governing his employment by the school from January 2020 to December 2022. He wants a payment in the sum of P482, 484 being: P304, 704 being the salary shortfall over the 36- months contract and P177, 780.00 compensation being six-months’ salary equivalent for unfair dismissal.
Tshwene has no case - MAP
Meanwhile, MAP attorney Lesego Bolowe dismissed Tshwene’s claims and applied for absolution of the school from the case. “The applicant spent a lot of time putting emphasis on matters before court. He made accusations of racism, allegations of mistreatment, accusing management of falsifying documents and even mocking employees of MAP who are disabled using crutches and hearing aides. I will not dwell into those, but rather address the matter before court being unilateral variation of the contract and unfair dismissal,” he said. Bolowe argued that Tshwene was wasting the court’s time since his contract which was due to run until December 2022 had run its course and that he could not plead unfair dismissal. “Unfair dismissal means termination of a running contract occurs without a just course and the applicant should demonstrate procedural and substantive unfairness. But these are not pleaded in his case. Non renewal cannot be mistaken for termination. He should know that the school is under no obligation to renew his contract,” he said. On allegations relating to Ponto, Bolowe said it was not true that she was appointed HoD, but that rather she was acting in the position to this day. On the variation of contract, Bolowe said unilateral variation happens when the employer changes the term of employment agreement without the knowledge or input of the employee. “The applicant has confirmed he received an email notifying him that there was a mistake in his contract and because he understood, he went ahead and signed. Also the fact that he had said his salary had been increasing at a snail’s pace, he should have been shocked to see an over P8,000.00 increment,” he said. Bolowe said it was shocking that Tshwene claimed he was under duress to sign the contract while he was never afraid to write letters of complaints to management. He said Tshwene had written to the school at least three times alleging racism but was never victimised then, why would it happen over contract variation? He said Tshwene just wanted to speak about racism claims, which he could not back. He said it could maybe make sense if Tshwene was replaced by a foreigner.
We have a case - Tshwene’s attorney
In defence of his client’s case, Makati said as a court of equity, and as per the Trade Dispute Act, his client was was a victim of racism, discrimination which led to his “bizarre” dismissal. “This case cannot just be thrown out of the window. Even with a fixed contract, the employer cannot just do as they wish. That would cause a problem to people working on contracts. My client had a legitimate expectation for a renewal after four renewals and also having produced good grades with students, not to have an unqualified person replace him. At least there should be reasons advanced for the decision,” he said. On variation of the contract, Makwati said the employer was wrong to revoke the initial contract without engaging his client. He said the client could not act appropriately as he was scared of what could happen to him if he did not sign as directed. Justice Makgato will deliver a ruling on whether MAP has a case to answer or not on the March 8, 2024. It is only after the decision has been made that MAP would then get a platform to refute Tshwene’s allegations in court through their witnesses.