The Labour Court has dismissed former National Youth Council director Calista Schwartz-Gowases’ claim for back pay covering nine months between her consecutive employment contracts.
This covers the nine months between the expiry of her first five-year contract and her eventual reappointment.
Schwartz-Gowases during the case argued she should be compensated for the period from 5 March to 8 December 2020.
Acting judge James Devittie, however, found that although the National Youth Council (NYC) had failed to establish the required performance-management and assessment processes during Schwartz-Gowases’ first term, this did not give her an automatic legal right to be paid for a period when she was no longer employed and had rendered no services.
The judge dismissed her appeal against an earlier arbitration ruling, finding that the arbitrator had made no error of law in rejecting her claim.
“The NYC’s failure to make timeous arrangements for a performance assessment process did not give the appellant a right to claim compensation for the period following the expiry of her contract.
“Her fixed-term contract had expired by effluxion of time and, given the hostility of the then board towards her as her initial contract drew to an end, the contention that a positive performance appraisal would have resulted in her immediate reappointment was speculative,” court documents state.
Schwartz-Gowases was appointed as NYC director on 6 February 2015 on a five-year fixed-term contract.
Under the NYC Act, she was eligible for reappointment for another five-year term, subject to a competitive recruitment process.
In November 2019, the NYC board informed her of its intentions to not renew her contract when it expired on 5 March 2020.
Schwartz-Gowases challenged the decision, arguing, among other things, that the NYC had failed to conduct a performance assessment which was supposed to form the basis for deciding whether she would be reappointed.
According to the judgment, the NYC had undertaken in her 2015 letter of appointment to provide her with a detailed job description, key performance areas and performance indicators.
Schwartz-Gowases said no proper performance agreement or assessment framework was put in place during her five years in office.
She subsequently complained to the labour commissioner and challenged the decision, arguing that the absence of a performance assessment had deprived her of a fair opportunity to be considered for reappointment.
The matter took another turn after an interim NYC board in 2020 said the council had failed to comply with statutory requirements governing Schwartz-Gowases’ employment, including providing her a performance agreement and periodic performance assessments and recommended that she be reappointed, initially proposing that the appointment be backdated to 6 March 2020, which did not happen.
Devittie said the NYC’s failure to put a performance assessment process in place did not, by itself, create a right to compensation after the expiry of her contract.
“Her fixed-term contract had expired by effluxion of time,” the judge said, and she had rendered no services to the NYC afterwards.
Devittie also rejected the argument based on legitimate expectation.
The judge concluded that the arbitrator had given cogent reasons for rejecting the compensation claim and had committed no error of law.
The appeal was therefore dismissed, with no order as to costs.
When approached for a comment, Schwartz-Gowases’ lawyer Jabulani Ncube said consultations on behalf of his client on the way forward are in the process.
“We cannot comment at the moment, we are still busy consulting on the way forward,” he says.
