ELRC 521-21/22LP
Award  Date:
  05 August 2022

Case No. ELRC 521-21/22LP

In the matter between





HEARD: 18 JULY 2022

DATE OF AWARD: 05 August 2022

SUMMARY: Whether the nonrenewal of a fixed term contract constitutes unfair dismissal.



1. The matter was set down for arbitration on the 18th of July 2022.

2. The parties confirmed receipt of the notice of set down at the commencement of the proceedings, and there was one pre-liminary issue outstanding being of legal representation. This I shall address within this award.

3. The applicant (employee) was initially represented by Mr Chris Wentzel from Chris Wentzel Attorneys while the respondent (the employer) was represented by Mr Makgopa Matlou a Labour Relations office of the department. Mr Wentzel withdrew from the proceedings at the commencement thereof.


4. I am required to determine whether the applicant’s dismissal was substantively and procedurally unfair.

5. Prior to addressing the merits of the matter, I must address the preliminary issue pertaining to representation.


6. In these proceedings the applicant referred an unfair dismissal dispute relating to the refusal of by the respondent to renew his fixed term contract.

7. The applicant was an employee of the Limpopo Department Education executing the duties of an educator at the Helen Franz Special School.

8. The applicant had been on several annual fixed term contracts which would be renewed on an annual basis.

9. The applicant was one of many foreign (non-citizen) educators who were appointed by the respondent.


10. The dispute referred herewith is one of alleging an unfair dismissal. The parties have agreed that the respondent would begin in leading evidence. The parties also agreed that the respondent had the onus to proof that the dismissal was both substantively and procedurally fair while the applicant had to proof that its dismissal was unfair as alleged.

11. The respondent called one witness being Mr Thomani Victor Lukheli and filed a bundle enclosing several documents. There was no dispute raised against the contents of the bundle thus same was adopted on the basis that the documents are what they purport to be.

12. Mr Lukheli’s evidence can be summarized as follows:

12.1 He is the Assistant Director of the human resources (HR) department in the employment of the respondent.

12.2 Part of his (Mr Lukheli) duties within human resources include management of educator appointments.

12.3 The applicant was offered an appointment on a temporary basis which at no instance had any guarantee of being made permanent. The latter temporary appointment was in the form of a one (1) year fixed term contract which would be renewable at the sole discretion of the respondent.

12.4 As per the terms and conditions of the aforementioned fixed term contract, the applicant’s last fixed term contract terminated on 31st of December 2017 to which the respondent elected not to renew in 2018.

12.5 He (Mr Lukheli) read into the record a clause within the contract that directed as follows:
“you will take period 01 December 2017 to 31 December 2017 as thirty days’ notice period of your termination”.

12.6 He confirmed that the above clause was consistently placed in the fixed term contract whether or one’s contract was renewed as such his testimony was that upon renewal, the employee would be presented with a contract (Appointment as a Temporary Educator).

12.7 He testified upon considering a renewal of a fixed term contract, an assessment if undertake which includes a consideration of various factors including whether the party holds a valid SACE certificate, whether they hold permits (when same employee is a non-citizen) and the outcome of an evaluation from SAQA of one’s qualifications to mention a few.

12.8 He testified that at some stage during the applicant’s employment, they were advised that his qualification was questionable thus after an evaluation of same and verification with the institution, it was deduced that same was “fake” or unrecognised by the institution. The consequence of the latter (an Evaluation of Qualification by the Department of Higher Education) called to question the applicant’s consideration for renewal of the fixed term contract.

12.9 He testified that upon receipt of the response from the institution (being the University of Cape Coast, Ghana Institute of Education they advise the applicant per an outcome of the verification investigation.

12.10 He also testified that around the same time of the verification investigation a circular was issued regarding the appointment of non-citizen teachers which also influenced the decision not to renew his contract.

12.11 He also testified that the applicant’s SACE certificate (as filed) was a temporary certificate.

13. The above witness was subject to cross-examination by the Applicant and the following was ascertained therefrom:
13.1 The employer had renewed the applicant’s fixed term contract however same did not amount to creating an expectation of permanent employment.

13.2 When asked whether the applicant occupied a substantive vacancy, he confirmed same however maintained that regardless of whether it was a substantive vacancy, the applicant was on a fixed term contract on very specific terms and conditions.

13.3 When asked about the applicant’s further qualifications from local tertiary institutions, the witness maintained that said qualifications were obtained (and issued) after the expiration of the applicant’s fixed term contract.

13.4 When asked about whether the applicant’s qualifications had been verified by the tertiary institution, he responded by saying that he was not working at the institution nor was he from the Department of Higher Education and Training.

13.5 He ended by testifying that for all intents and purpose the employer was under the impression that the applicant was an employee on a fixed term contract whose had expired and would not be renewed. He also repeatedly referred to the new requirements imposed by the Department of Home Affairs and the Department of Labour which the employer (the Respondent) had to comply with.

13.6 When asked if the University of Ghana was mistaken or confused about the qualification he obtained and their assessment about the veracity thereof, he testified that the institution advised that the qualification was fake although it was also furnished with a copy of the qualification. He further testified that the outcome of the institution’s investigation was communicated to all affected employees no as early as the 22nd of December 2018.

13.7 When asked whether the applicant was the only employee affected and whether the respondent had employed any other foreign (non-citizens) in a permanent capacity, the witness testified that although there are non-citizens appointed in a permanent capacity vacancies the applicant’s contract had expired also the legislative requirements affected many other employees.

14. The applicant presented its own viva voce evidence and its testimony can be summarized as follows:
14.1 He had been working at the Respondent since 2011;

14.2 He has always held valid immigration papers including the permanent residency permit which then assisted in the acquiring of the non-citizen identity document that he currently holds.

14.3 He only learned in 2018 of his contract not being renewed however in previous years he would be advised in the early days of the next year if his annual contract of the previous year was renewed.

14.4 He had received a letter in 2014 that advised that he was appointed in a substantive vacancy as such he would be absorbed on a permanent basis upon acquiring permanent residency.

14.5 He was surprised when the respondent did not renew his contract and failed to honour the same letter.

14.6 Based on the letter and the annual renewals since 2011, he had a reasonable expectation for permanent employment.

14.7 In regarding correspondence (and investigation) by University of Ghana, he was unsure as to their process undertake as such he was challenging their outcomes because it seems that they are mistaken due to them referring to a different qualification. He emphasised that even North West University (a local tertiary institution) recognised his qualification and permitted him to study and complete further programs in higher education.

14.8 He testified that all of his qualifications were verified by the South African Qualifications Authority and the Department of Higher Education which the respondent knew of and accepted.

14.9 The respondent had employed many foreign nationals (non-citizens) on same terms as he was, some of which were absorbed into permanent employment.

14.10 Since 2014, the respondent had never queried his qualifications or advised him (the applicant) as to the new circular as testified by Mr Lukheli.

15. The applicant (as a witness) was then subject to cross-examination and the following was ascertained therefrom:
15.1 The applicant’s appoints was always a 1 year contract which had specific terms;

15.2 He was never promised permanent employment at any time during his tenure throughout the annual renewals.

15.3 The prerogative to appoint educators lied within the respondent more specifically the director of HR once a vacancy was available and one would only be appointed into same vacancy if they met the requirements.

15.4 The applicant was aware of the new developments in the education department more so those influenced by the Department of Home Affairs and enforced by the Department of Labour.

15.5 The applicant was aware that his qualifications would subject to an evaluation as such he endeavoured to upskill himself as such he acquired further education which was post the expiration of his annual contract at the respondent.

16 After considering the viva voce evidence, I shall hereinunder summarise the parties respective written submissions as filed.
16.1 The case of the Respondent per its submissions can be summarised as follows:
16.1.1 The applicant has concede that he was an employee on a fixed term contract which terminated by operation of its own terms and conditions.
16.1.2 The applicant was not promised an extension of contract nor was there any promise of permanent employment.
16.1.3 The applicant fully knew the terms and conditions applicable for a contract to be renewed.
16.1.4 The applicant’s initial qualifications (the ones initially submitted for employment in 2011) were subjected to an evaluation which required verification.
16.1.5 The employer conducted its evaluation of the applicants qualifications (and other employees) as such when the University of Cape Coast, Ghana advised that the applicant’s qualification was fake, the employer (per the testimony of Mr Lukheli) advised the applicant.
16.1.6 The employer had issued a circular regarding the employment of non-citizens as per the developments in the Department of Home Affairs and the Department of Home Affairs.
16.1.7 The applicant currently holds a Teacher’s Certificate however his academic record doesn’t correspond with such.

16.2 The case of the Applicant per its submissions can be summarised as follows:

16.2.1 The applicant was dismissed and was not advised of the reasons for the dismissal;
16.2.2 The applicant had been employed on several fixed term contracts from 2011 to 2017.
16.2.3 Although the employer included a provision pertaining to the termination of each fixed term contract, the repeated renewal created an expectation as such the applicant relies on section 186 (1)(b).
16.2.4 The applicant was owed the employee an explanation or the courtesy of same.
16.2.5 The applicant had not misrepresented his qualifications as such believes that the University of the Cape Coast, Ghana was misdirected.
16.2.6 The applicant notes that in the appointment letter of 2014, the respondent advised that the applicant would be absorbed once he met certain conditions however when those conditions were satisfied the respondent failed to absorb the applicant.
16.2.7 The applicant ought to have been afforded some communication when there is a change of conditions however the respondent merely elected to rely on its termination clause.

17 I now turn to the analysis of the submissions in relation to the applicable law.


18. The first premise to work from is what constitutes an unfair dismissal in consideration with whether the applicant’s termination of employment constitutes unfair dismissal.

19. In considering the above, I divert from section 186(1) of the Labour Relations Act 66 of 1995 which reads as follows:

““Dismissal” means that—
(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer—
(i) 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; or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee;
(c) an employer refused to allow an employee to resume work after she—
(i) took maternity leave in terms of any law, collective agreement or her contract of employment;

(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
(e) an employee terminated employment with or without notice because the employer made continued employment intolerable for the employee; or
(f) an employee terminated employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.

20. As argued by the applicant it relies on section 186(1)(b) thus we shall consider its submissions in this parameter.

21. My next point of departure is whether or not the termination of employment by expiration of the fixed term contract constitutes unfair dismissal. It goes without saying that the applicant was dismissed.

22. It is evident that the most critical element of this dispute is whether there was a reasonable expectation of permanent employment or at least the renewal of the fixed term contract which expired herein.

23. In addressing the above, I shall consider the correspondence between the parties then I shall delve into the reasons advanced by both parties.

24. Both parties concede that the applicant’s letter of appointment and fixed term contract specified its termination date and which period should be considered as the ‘notice’ period.

25. It is also undisputed that there wasn’t an expressed promise of full time employment because there wasn’t any evidence relating to what occurred post the letter of appointment of 2014, neither the applicant nor the respondent canvassed whether on the termination of that fixed term contract, there was any pursuance thereto.

26. The respondent raises that the applicant’s dismissal was ipso jure expiration of a fixed term contract. While the applicant raises that it was dismissed as it (the applicant) expected permanent employment.

27. Although the applicant attempted to place an onerous responsibility on the respondent to offer him permanent employment post.

28. It is worth considering that an employee whose party to a fixed term contract would only be able to claim permanent employment if there is a expressed promise of same permanent employment. In the absence of such expressed promise, one cannot claim there was an expectation of permanent employment.

29. The applicant relied on King Sabata Dalindyebo Municipality v CCMA & others (2005) 26 ILJ 474 (LC), however failed to consider what the deciding principles in the latter case, which included that the services still required and there were available funds. The respondent’s witness did attest (without any opposition) that there wasn’t an available post at the moment and there were directing legislation that encouraged the appointment of locally trained educators preferably. The latter is not justification of dismissal it explains the complications experienced by the respondent in considering offering the applicant a further fixed term contract in 2018 onwards.

30. In Dube and others v University of Zululand and others [2019] 3 BLLR 285 (LC) the court directed that in such cases wherein an applicant argues reasonable expectation, same applicant must objectively establish the expectation. The honourable court referred to SA Rugby Players’ Association v SA Rugby (Pty) Ltd [2008] 9 BLLR 845 LAC.


31. The applicant’s case is dismissed.

32. The applicant’s dismissal was fair.

Yolisa Ndzuta
Panelist: ELRC
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