02 October -ELRC129-25/26GP

ARBITRATION AWARD

Panellist: Asnath Sedibane
Case No: ELRC129-25/26GP
Date of Award: 30 September 2025

In the ARBITRATION between:

Sumbane, Tinyiko Salmon
(Union / Applicant)
And

Education Department of Gauteng
(Respondent)

Union/Applicant’s representative: Self-Represented
Union/Applicant’s address: Telephone:
Telefax:
Email:

Respondent’s representative: Ms. Charmain Trent
Respondent’s address:

Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing between Sumbane, Tinyiko Salmon and Education Department of Gauteng was held under the auspices of the Education Labour Relation Council (ELRC), virtually via MS Teams on 30/06/2024; 06/07/2025; 06 and on 07 August 2025 and 03 and 09 September 2025.
The applicant, Mr Tinyiko Salmon Sumbane attended the process and represented himself. The respondent, the Education Department of Gauteng was represented by Ms Charmain Trent, an official of the respondent.
The process was manually and digitally recorded.
The parties exchanged bundles of documents, the Respondent’s bundles were marked as “Sumbane 1”, “Sumbane 2” and “Sumbane 3” respectfully. The Applicant’s bundles were marked as “A1”, “A2” and “A3” respectfully.
ISSUES TO BE DECIDED
I am required to determine whether the applicant was dismissed by the respondent and if I find that the applicant was dismissed, I must then determine if such dismissal was procedurally and substantively fair.
BACKGROUND TO THE DISPUTE
The applicant, Mr. Tinyiko Salmon Sumbane was employed by the respondent, the Education Department of Gauteng, as an educator at Thuto Pele Secondary School in Gauteng West District. His appointment was with effect from 01 February 2024 until 30 June 2024. The applicant was on subsequent fixed term contracts from 01 July 2024 until 30 September 2024; from 01 October 2024 until 31 December 2024; and from 01 January 2025 until 30 March 2025.
The applicant referred an alleged unfair dismissal dispute to the ELRC. The respondent disputes that the applicant was dismissed and has contended that the applicant’s fixed-term contract had come to an end.
Narrowing of issues
The parties agreed that the following issues were common cause between them:
8.1 The applicant was employed by the respondent from 01 February 2024 until 30 March 2025.
8.2 The salary notch at the time of the termination of the applicant’s employment was R333 624-00 per annum.
The parties agreed that the issues in dispute between them were as follows:
9.1 Whether the applicant was dismissed on 08 April 2025.
9.2 Whether the applicant’s fixed-term contract came to an end on 30 March 2025.
9.3 Whether the respondent created a reasonable expectation of the renewal of the applicant’s fixed-term contract.
9.4 Whether the applicant was appointed in a post against promotion.
SURVEY OF EVIDENCE AND ARGUMENTS
THE APPLICANT’S CASE:
The applicant, Mr Tinyiko Salmon Sumbane, testified briefly as follows:
He was appointed by the respondent on a fixed-term contract to replace a history teacher who went on retirement in 2023. His contract commenced on 01 February 2024, and he had signed the contract on 06 February 2024. The Principal had explained the nature of the post to him, that it was as a result of the retirement of the previous teacher, Mr Mpotulo.
He became aware on 20 March 2025 when he did not receive his bonus, that his contract was being terminated. He went to the District office, and he met the Principal there. The Principal had ordered him to go home. He had spoken to the Human Resources (HR), and they told him that he had been appointed against a promotional post.
He disputed that he had been appointed against a promotional post. He inquired with the Principal, and he could not give him an answer. Two days before schools closed in March 2025, the Principal had called him and told him that his contract was ending. He refused to sign the termination letter. He told the Principal that he suspected that what he was doing was illegal.
The Principal had in a departmental meeting blamed Mr Monyeleote for having brought him to the school. He had observed that all teachers were afraid of the Principal and would not question him. The Principal would tell teachers that they were slaves and must obey what he told them. The Principal also imposed his religion on the teachers.
Whenever he signed renewals of the fixed-term contract, the Principal would instruct him through the admin, not to put signature on the documents. He did not know the reason for that. He would put his details and not sign as per instruction. The admin would put the school’s details on the forms.
The Principal had humiliated him on 08 April 2025, by dragging him outside the school’s premises. He had refused to allow him to take his car which was parked on the school premises. SADTU officials had come to the school and questioned the Principal about his contract, and the Principal had provided a form that looked fraudulent. The Principal had admitted that he had appointed another teacher in the history post.
The respondent has violated its own policies as well as the ELRC Resolution 2 of 2024 and Circular 1 of 2024. Someone else was appointed in the substantive post months after him and the nature of his contract had been changed without his consent.
He did not receive an appointment letter. He had a reasonable expectation of absorption in a permanent post. He had served the respondent faithfully and reasonably for more than three months. In terms of Circular 1 of 2024, a teacher who was in a fixed-term contract for over three months must be converted to a permanent position. He had worked for over thirteen months. He knew nothing about being appointed against a promotional post.
The Principal had tried several times to find misconduct against him. Once when the Principal found him dosing in his car, he took pictures of him. He could see that the Principal was trying to get rid of him. He once also prophesied things that were untrue. The Principal once asked to see his wife for spiritual reasons and his wife had refused. The Principal had charged him and a Head of Department for leaving their classes to submit something that was required. It was unethical for the Principal to charge them when they had given valid reasons for leaving their classes.
All the documents relating to his contract are scanned copies and not originals. Some are not in his handwriting and some of the signatures were not his. His signature on the original contract that he signed was cut and pasted electronically onto other documents. Some of the documents were edited. He referred to several documents in the respondent’s bundle and pointed out different issues from dates being changed, signatures being pasted and the handwriting not being his.
Under cross-examination, Mr Sumbane testified that he had been informed about the post at Thuto Pele Secondary School by his brother who was based in Limpopo. He had contacted Mr Monyeleote who then told him to come to the school. He had gone to the school and was interviewed by the Principal alone and he was told to report for duty the next day.
He disputed that Mr Monyeleote had told him that the post was a temporary post for two months. He disputed that the post had been advertised, he averred that teachers at the school did not know anything about the post and his brother had seen it on a WhatsApp group in Limpopo.
Nothing had been explained to him about his contracts, and he did not know when they had started and ended. He had been told not to put dates next to the signatures whenever he was asked by admin to fill in forms. He disputed that he was friends with Mr Monyeleote who ran the school with the Principal.
He reiterated that he did not know anything about having been appointed against a promotional post. He had challenged the Principal when he told him that his contract had expired. He disputed that it had been explained to him before schools closed in March 2025 that his contract was terminated. Everyone had observed the dispute between him and the Principal. When his scripts went missing, the Principal had not allowed him to view the footage of that day.
He insisted that he had been employed to replace Mr Mpotulo who went on retirement. He did not know how the Department had managed to put him in the post on 01 February 2024 when Mr Mpotulo had retired at the end of February 2025.
He had expected his fixed-term contract to be renewed. He was employed by the Principal, and he did not sign the contract with the Department. The School Governing Body (SGB) was not involved in his appointment.
He refuted that he had been aware that he had been appointed against a promotional post.
The applicant’s first witness, Ms Magdeline Anna Mmaletlape Khumalo, a Departmental Head at Thuto Pele Secondary School testified briefly as follows:
Only she and Mr Sumbane were called and made to sign for not going to class. Grade 9 teachers had to submit files to the District office for moderation. A lot of teachers were busy preparing their files and did not go to classes but only the two of them were reprimanded.
There is no longer a School Management Team (SMT) at the school because whenever the Principal calls an SMT meeting, it is always with the subject heads as well. No interviews are held, she would only hear that new teachers had been employed. Class allocation is also changed without the SMT’s knowledge.
She feels undermined as a member of the SMT. She also feels that her duties and responsibilities have been taken away. There is division in the school between NAPTOSA and SADTU members. The Principal is member of NAPTOSA, and his younger sister is the union’s site steward. The Principal also tried to bring division between the old and the young staff members, but they remained united.
The Principal would read scriptures and ask the staff to follow him. He once told them that his prayers cover the school and that is why none of them died. He does the same with learners.
Under cross-examination, Ms Khumalo testified that the extended SMT meetings started in 2023. She confirmed that she was part of the SADTU members that lodged a grievance against the Principal with the Department and with SACE. She said that they had found the Principal talking and laughing with officials who were supposed to investigate the grievance.
She and Mr Sumbane were victimised for not going to class when other teachers had done the same thing. She confirmed that she is not a member of the SGB. She has nothing against the Principal.
The applicant’s second witness, Ms Agnes Raisetsa Masemola, a PL1 teacher at Thuto Pele Secondary School testified briefly as follows:
She first met Mr Sumbane when he arrived at the school, she was his subject head. She had thought that he was replacing Mr Mpotulo who was on sick leave since 2023, as he was teaching his subjects and Mr Mpotulo was about to retire in 2024.
At the end of the first term in 2025, scripts for Mr Sumbane’s social sciences class got lost. The Principal was angry and blamed Mr Monyeleote for bringing Mr Sumbane to the school. On the first day of the second term, the SADTU BEC came to the school and had a meeting with the Principal. She was part of the meeting as a site steward. The BEC tried to resolve the issue but could not find a solution. The Principal said that Mr Sumbane was appointed against a promotional post. The Principal said Mr Qhekwane had replaced Mr Sumbane. She had thought that Mr Qhekwane had replaced Ms Qondile who was on sick leave.
Under cross-examination Ms Masemola confirmed that when Mr Sumbane started at the school Mr Mpotulo was not yet on retirement. She did not know the nature of the post that Mr Sumbane was employed in, and she does not know the difference between posts.
She agreed that loosing scripts constitutes serious misconduct.
THE RESPONDENT’S CASE:
The first witness for the respondent, Mr Zwiitane Moses Sinyosi, Principal at Thuto Pele Secondary School, testified under oath as follows:
He first met Mr Sumbane on 30th January 2024 during his interview. Two SGB members, Mr Makhadi and Ms Huma were part of the interview panel. The post had been advertised. A Departmental Head (DH) post had become vacant, and a decision was taken that whilst the school was waiting for the post to be filled, a PL 1 post should be created against the promotional post.
The applicant’s Curriculum Vitae was submitted by Mr Monyeleote. It is not true that Mr Sumbane was appointed in the vacant substantive post of Mr Mpotulo as Mr Mpotulo left the system at the end of February 2024 and Mr Sumbane had been employed with effect from 01 February 2024.
Mr Sumbane was first appointed in a two-month fixed-term contract, it was extended until March 2025. Mr Nyathi had been teaching Maths and Maths Literacy. Mr Sumbane could not have been appointed in Mr Nyathi’s post.
It had been explained to Mr Sumbane in the interview that his post was for two-months. Mr Sumbane had filled in a GDE1 which was submitted to HR. The contract had been extended until June 2024, from July until September 2024, again from October until December 2024 and finally from January until March 2025.
It is not true that Mr Sumbane had signed blank contracts. It is further not true that Mr Sumbane’s contract had been changed from substantive to against promotional post. He had reprimanded Mr Sumbane when he found him sleeping in his car. He had not charged him for misconduct.
Two days before schools closed in March 2025, he had called the applicant to a meeting with Mr Malatji and Mr Nemakonde and had informed him that his contract was coming to an end and that he should do a hand over. The applicant had an outburst and said that the Principal wanted to put somebody else in his post, he said that he would come back when schools reopened.
He disputed that he victimised and bullied the staff. Prayers are voluntary. It is not true that the District office personnel were also scared of him.
Mr Sumbane was not dismissed but his fixed-term contract had come to an end. When Mr Sumbane came to the school on 08 April 2025, he had asked the security to assist to escort him out of the school. Mr Sumbane had come back with SADTU BEC. He confirmed the incident of the missing scripts from Mr Sumbane’s class. He had found some of the scripts that were allegedly lost in another batch.
Under cross-examination, Mr Sinyosi said that the DH post was for Maths but the PL1 post was for history as there was a problem with history at the time. The initial contract was for two months’, and he was advised by the District office to extend it until June 2024, he asked Mr Makhadi, the admin to transfer the information to the second contract. The applicant had signed the contract.
Mr Qhekwane had been brought to the school to teach history and Xhosa. He confirmed that this was when Ms Qondile was on sick leave. Unions were always invited to observe interviews, but they did not come for temporary posts.
He refuted that he forced staff to resign. He reiterated that the applicant had been employed against a promotional post.
The second witness for the respondent, Mr Phatotshedzo Monyeleote, a teacher and SGB member at Thuto Pele Secondary School testified briefly as follows:
He was texted by Mr Sumbane on 28 January 2024, about the advert of the post at the school that his brother saw. When Mr Sumbane called him, he told him to send his CV, and he did and was called for an interview. Mr Sumbane was appointed in a fixed-term contract for two months and it was later extended.
He is a member of the SGB. He had welcomed Mr Sumbane when he started at the school. He considered him a friend. When Mr Sumbane had offered to buy him lunch, he had asked him to buy meat for braai for the staff, and they had gone to buy it in Mr Sumbane’s car. Mr Sumbane had updated him about the extensions of his contract.
In March 2025, Mr Sumbane came to staff room angry, saying that the Principal wanted to get rid of him, but he was going nowhere. The Principal announced in a meeting that Mr Sumbane was leaving at the end of the term. Mr Nyathi was appointed in the promotional DH post from April 2025. Mr Mpotulo had retired at the end of February 2025.
The applicant should have known that he had been appointed against a promotional post as he had signed the contract. It is impossible that the applicant could have been appointed in Mr Mpotulo’s post as Mr Mpotulo had retired at the end of February 2025.
He is not scared of the Principal. There is an SMT and an extended SMT. When Mr Sumbane had missing scripts, the learners were given an opportunity to rewrite the paper. It is voluntary to attend prayer meetings, and some teachers do not attend them. He does not know of anyone who resigned because of the Principal.
Under cross-examination, Mr Monyeleote reiterated that he had considered Mr Sumbane as a friend, and they had talked about a lot of things. The allegations of him assaulting a learner are being handled by labour relations and the principal did not shield him. He had keys to Mr Nemakonde’s office since 2023.
The third witness for the respondent, Ms Ndivhuwo Mabaso, Chief Personnel Officer testified briefly under as follows:
The applicant had been appointed in a temporary two-months contract against a promotional post. His appointment was with effect from 01 February 2024. The post had been advertised in the government gazette. She referred to the different documents and codes used in the appointment process. The contract had been extended on three occasions, until it was terminated at the end of March 2025.
Mr Mpotulo went on retirement on 29 February 2024. The applicant was never appointed in a vacant substantive post. She disputed that the applicant’s post was changed from substantive to against promotional post. The applicant’s post did not exist on the post establishment and was created temporarily.
Under cross-examination, Ms Mabaso testified that she remembered the applicant from when he came to the District office to inquire about the nature of his post, she could not remember meeting the applicant when he was first employed at the school. If the documents pertaining to the applicant’s contract and extension were not legitimate, he would not have been paid a salary. According to her, the applicant’s signatures on the documents are original signatures and they are the same.
The HR personnel may fill in the forms for extension. The forms are then sent to the Conditions of Service Component where they are filed. Temporary appointment letters are done by Conditions of Service, but they are usually not issued.
The fourth witness for the respondent, Ms Bridgette Huma, former SGB Chairperson of Thuto Pele Secondary School testified briefly under as follows:
She was part of the panel that interviewed the applicant for the temporary post at the school. Whilst she was part of the SGB, the Principal would call meetings, and they updated on everything that was happening at the school. The Principal had explained to the applicant that the post was temporary, and it was for two months.
Under cross-examination, Ms Huma said that unions were invited to interviews but they did not attend the applicant’s interview. She had been an SGB member since 2018, she was currently assisting in the tuckshop and selling uniform. She also assisted with fundraising.
She disputed that the SGB are the Principal’s subjects. She never received any favours from the school. She has never seen learners being forced to pray at the school.
The fifth witness for the respondent, Mr Neledzani Nemakonde, Head of Department at Thuto Pele Secondary School testified briefly under as follows:
Mr Sumbane was introduced to him by the Principal in February 2024, he was informed that he would be working with them for two months. The post that Mr Sumbane had occupied was against a Maths promotional post. Mr Mutshinga, a Deputy Principal had brought Mr Sumbane to him so he could show him the work. The Principal had announced in the SMT meeting that two teachers, one of them being the applicant, would be joining them and that Mr Sumbane would be with the school for two months.
Due to ill-health, he was in and out of hospital and had asked the Principal to send someone to get the key to his office. Mr Sumbane had an issue of missing scripts and some of the scripts had been found by the Principal. On 26 March 2025 he attended a meeting with the Principal, Mr Malatji and Mr Sumbane, the Principal had given Mr Sumbane a letter and asked him to do a hand over. The Principal and Mr Sumbane had exchanged words, and Mr Sumbane had refused to sign the letter.
Mr Mpotulo was off-sick since 2023 and had retired at the end of February 2024. It is not possible for Mr Sumbane to have been employed in Mr Mpotulo’s post as he came to the school when Mr Mpotulo was on sick leave. He disputed that he had been bullied by Mr Monyeleote.
Under cross-examination, Mr Nemakonde said that he was not forced to testify, and he only came to testify as his name had been mentioned in the proceedings. He is not supposed to be under stress, and he fears God and would not lie. He refuted that he had complained about Mr Monyeleote sitting in his office.
The 6th witness for the respondent, Ms Louisa Dhlamini, Deputy Education Specialist- Human Resources Provisions testified briefly under as follows:
The applicant was in a post against a promotional post. The forms in the respondent’s bundle of documents are a mandate which shows in which post a person is being appointed. The applicant was never appointed in a PL1 post. Mr Mpotulo retired at the end of February 2024, the applicant could therefore not have been employed in the post of Mr Mpotulo as Mr Mpotulo was still at the school when the applicant was employed.
Under cross-examination, Ms Dhlamini disputed that all the documents she referred to were fraudulent. She said that HRP only receives original documents from the Principal, and these are sent to Conditions of Service. She is not the custodian of the files.
The 7th witness for the respondent, Mr Thabiso Godfrey Malatji, Deputy Principal at Thuto Pele Secondary School testified briefly under as follows:
The applicant was appointed in a post against the promotional post of departmental head. It is not true that the applicant was appointed in the substantive post Mr Mpotulo as he started on 01 February 2024 whereas Mr Mpotulo only went on retirement at the end of February 2024. He first met the applicant on 30 January 2024 when the Principal introduced him and explained to him that he was in a temporary post for two months.
No one at the school has resigned due to pressure from the Principal. The staff at the school work as a team. Prayers are optional and no one is forced to pray. He was called to a meeting with the Principal, Mr Nemakonde and Mr Sumbane on 26 March 2025, the Principal had told Mr Sumbane his contract was ending and that he should do a handover. Mr Sumbane had refused to sign the letter and told the Principal that he would come back to the school when schools reopened.
Under cross-examination, Mr Malatji said that he was involved in the issue of Mr Sumbane’s missing scripts and Mr Sumbane had said that he had asked his sister-in law to assist him to mark the scripts. He said that in his case someone had stolen his laptop and there were scripts in the laptop bag, and he had enough time to give the learners another test. He disputed that he was a victim and that the Principal bosses everyone around.
Closing arguments
In closing, the applicant submitted that the respondent has produced fraudulent contracts, his original contract was for a history substantive post. The witnesses of the respondent except the Principal knew nothing about his appointment and were manipulated and victimized to testify against him. Even the minutes of his interview were forged. The Collective agreements 02 of 2024 and 01 of 2020 provide that a temporary teacher who has been employed in a temporary capacity for more than three months is eligible for conversion to permanency. This is in line with section 198 of the LRA. He was the first to meet the requirements for conversion, but the respondent instead converted another teacher who came to the school after him, to replace an IsiXhosa teacher who was on a long sick leave.
The HPR witness Ms Mabaso admitted to having filled the GDE1 form on behalf of the school when she was clearly not permitted to do so. The respondent violated section 186(1)(b) of the LRA where he reasonably expected that his fixed-term contract would be renewed on the same or similar terms, but it was renewed on less favourable terms. He was unfairly dismissed based on fraud and corruption. He seeks absorption in a funded substantive post in a school not more than 11km from his house. He also seeks backpay in salaries including a service bonus from April 2025 and possible financial damages.
In closing, the respondent submitted that the applicant failed to put his version to any of the respondent’s witnesses. The applicant was aggressive and hostile, he was neither a credible nor a reliable witness. The applicant’s witnesses’ evidence did not assist with regards to the applicant’s contract which was central to the dispute. The respondent led the evidence of seven witnesses who were credible and reliable. The respondent’s witnesses led oral evidence and referred to relevant documents to show that the applicant had been appointed in a temporary fixed term contract. The applicant could not have been appointed in a substantive post, the post of Mr Mpotulo which the applicant claimed to have been appointed in was not vacant at the time of the applicant’s appointment. The applicant failed to prove his case of unfair dismissal, on a balance of probabilities. The respondent seeks for an order that the applicant’s case is dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
The applicant has referred an unfair dismissal dispute to the ELRC, alleging that he was dismissed by the respondent. The respondent has disputed that the applicant was dismissed and has contended that the applicant had been appointed on a fixed term contract which came to an end.
The applicant’s dispute is premised on section 186(1)(b) of the Labour Relations act 66 of 1995, which provides as follows:
Section 186
Meaning of dismissal and unfair labour practice:
(1) Dismissal means that-
(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.
The applicant, however, seemed to be undecided on which provision section 186(1) of the LRA his dispute is based. In his evidence, the applicant in the first instance seemed to be contending that he was appointed by the respondent in a fixed-term contract and in a substitute post, which he expected to be converted to permanency but was instead not renewed. In another breath, the applicant has argued that he had reasonably expected that his fixed-term contract would be renewed on the same or similar terms but was instead renewed on less favourable terms (which contrasts with the evidence led that the contract was terminated).
The applicant testified that the respondent changed his original contract, which was supposed to be converted from being a fixed-term contract into being permanent, in line with the ELRC Collective Agreement 2 of 2024 and in particular clause 4.2. He contended that he met the requirements of the eligibility for conversion in terms of clause 4.2.1 of the agreement, in that he has served the respondent faithfully for more than three months.
The applicant disputed that he had been employed in a temporary post against promotion. He disputed the contract that was allegedly filled by him when he was first appointed on 01 February 2024 and when the contract was extended first until 30 June 2024, another extension until 30 September 2024, then until 31 December 2024 and ultimately until 31 March 2025. The applicant argued that the documents were fraudulent as his signature was cut and pasted on the documents, from the first contract that he signed, and which has been unilaterally changed by the respondent.
The applicant attacked the credibility of the Principal of the school, Mr Sinyosi and the process that was allegedly used to employ him. He alleged that he was appointed by the Principal alone, without having gone through an interview process and the Principal only informed his two Deputy Principals that he has been appointed. He further contended that the post had not been advertised and none of the teachers except for Mr Monyeleote knew about the vacancy.
The applicant contended that the staff and the SGB at the school were the subjects of the Principal, who ran the school the way he wanted and did not involve the SGB and the School Management Team in decision making. According to the applicant, the Principal imposed his religion on the staff and learners and dealt with anybody who did not do as he said, hence he concocted a plan to get rid of him.
It was the evidence of the applicant that when he has employed, the Principal had informed him that he was replacing Mr Mpotulo, a history teacher who was on incapacity leave and who subsequently retired. According to the applicant, he was made to believe that he would be permanently absorbed in the position that he was occupying. He was surprised when he was dismissed by the Principal on the 8th of April 2025 when schools reopened for the second term. He was thrown out of the school by the Principal, with his car still parked in the school yard and in full view of the staff and the learners, which was humiliating. The SADTU BEC had returned to the school with him and were told by the Principal that he had been in a post against promotion, which was not true. He knew nothing about post against promotion and wanted to be reinstated, with back pay but to be deployed in another school, not more than 11km from his house.
The applicant led evidence through two witnesses, Ms Khumalo and Ms Masemola. Both witnesses testified that they were not aware of the nature of the applicant’s contract. They both confirmed that Mr Mpotulo had retired at the end of February 2024 and that the applicant had been employed on 01 February 2024, whilst Mr Mpotulo was still employed albeit being on incapacity leave. The two witnesses could not dispute that two people could not occupy the same post at the same time.
The respondent refuted the applicant’s evidence. The evidence by the Principal, Mr Sinyosi, The Deputy Principal, Mr Malatji, the Departmental Head, Mr Nemakonde, an educator and member of the SGB, Mr Monyeloete, two HRP officials, Ms Mabaso and Ms Dhlamini, former SGB chairperson, Ms Huma, all testified that the applicant had been appointed in a post against promotion and that this had been explained to him by the Principal when he was first appointed in February 2024.
Mr Sinyosi and Ms Huma both confirmed that the applicant was interviewed by the Principal and two members of the SGB on 30 January 2024 and that he was advised that he was recommended for the position and that he should assume duty on 01 February 2024. According to the two witnesses, the applicant was also advised that the post was a temporary post against promotion, and it was only for two months.
It is common cause that the applicant worked as an educator at Thuto Pele Secondary School, from 01 February 2024 until 30 March 2025. The applicant has however disputed that he signed any of the extensions and he further contended that his original contract had been fraudulently changed without his knowledge. Both Ms Khumalo and Ms Mabaso, HRP officials, testified that without the applicant having signed the contract and extensions, the respondent would not have paid him a salary for the duration of his employment. Both officials further testified that the Conditions of Service Component was the custodian of the documents pertaining to the applicant’s contract and extensions.
All the respondent’s witnesses corroborated each other on the nature of the applicant’s contract, that it was against a Maths Departmental Head post which had to be advertised and subjected to the recruitment process before it could be permanently filled. As a result of the vacancy of DH post, the respondent had created a Post Level 1 temporary post, which was advertised through the Government Gazette and shared on social media by some staff members and also posted on the school’s notice board. The applicant became aware of the post through his brother, he contacted Mr Monyeleote who had shared it through his social media.
The applicant made a lot of allegations which he could not substantiate through evidence. He alleged that his signature was cut from the original contract and pasted on the “fraudulent” documents. He could however not lead any evidence to prove this allegation on a balance of probabilities. He further alleged that he had occupied a substantive post for history, which was vacated by one Mr Mpotulo. It was however proven through evidence, that Mr Mpotulo only vacated the post at the end of February 2025, close to a month after the applicant was employed.
The applicant led and sought to cross-examine the respondent’s witnesses extensively on irrelevant evidence. For instance, he argued that the Principal had “subjects” and did what he pleased, despite there being procedures within the department. He also alleged that the staff at the school were afraid of the Principal and that he caused some staff members to resign. This evidence was refuted by the respondent’s witnesses, all of whom gave consistent and corroboratory evidence. The respondent’s witnesses all presented credible evidence that was in some instances supported by documentary evidence, such as the documents pertaining to the applicant’s nature of contract and documents used to extend the contract.
The applicant’s contention that he had a reasonable expectation for extension of his fixed-term contract was not consistent with the respondent’s witnesses’ evidence that the applicant was initially in a two-month contract, which was extended with other short-term contracts due to the DH promotional post having taken long to fill and when the post was finally filled, the applicant’s fixed-term contract could not be extended further.
The onus to prove whether there was dismissal in terms of section 186(1) (b) in circumstances where a fixed-term contract was not renewed or was renewed on less favourable terms, in each case rests with the applicant who alleges such dismissal. The Labour Court in Member of the Executive Council for the Department of Finance Eastern Cape v Milander & Others (2011)32 ILJ 2521 (LC) summarised the approach adopted in determining whether a reasonable expectation of renewal of a fixed-term contract has been established. The court held in this case that such a test involved a dual inquiry. The first inquiry is a subjective one and entails enquiring into the subjective basis upon which an employee contends that his/her contract ought to have been renewed. If the employee fails to show that he/she had a reasonable expectation that his/her contract would be renewed, then that brings the inquiry to an end.
However, if the employee succeeds in showing that he/she subjectively expected that his/her fixed-term contract would be renewed then the second enquiry entails a determination of the existence of such expectation on the basis of the objective facts that existed prior to the termination of the contract.
The applicant in this matter has contended that he had been advised by the Principal that he was occupying the post of Mr Mpotulo and that he had therefore expected that he would be permanently absorbed in the post, in line with the ELRC Collective Agreements 1 of 2020 and 2 of 2024, as well as section 198 of the LRA, which provides for permanent absorption of an employee who has served for more than three months in the position. The respondent’s evidence, given through seven witnesses, has shown that the applicant’s subjective expectation was unfounded as Mr Mpotulo was still employed when the applicant assumed the temporary position. The Principal expressly denied having made such a promise to the applicant. The collective agreement that the applicant referred to speak to conversion of temporary educators appointed in substantive vacant posts, not a post against a promotional post. This provision is therefore not applicable in the case of the applicant. Section 198B (3) of the LRA allows employers to employ employees in fixed-term contracts for longer than three months if any of the listed exceptions exist.
The LAC in South African Rugby Players Association (SAPRA) and Others v SA Rugby (Pty) Limited and Others [2008] 9 BLLR 845 (LAC) in paragraph 43 states as follows: “What section 186 (1) (b) provides for is that there would be a dismissal in circumstances where an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer only offered to renew it on less favourable terms or did not renew it.” The operative terms of section 186(1) (b) are in my view, that the employee should have a reasonable expectation, and the employer fails to renew a fixed term contract or renews it on less favourable terms. The fixed- term contract should also be capable of renewal. The respondent has in this matter, proved, on a balance of probabilities, that the applicant’s contract could not be renewed beyond the filling of the DH post against which the applicant’s post had been created. Any expectation for renewal by the applicant can therefore not be reasonable.
The Labour Appeal Court in Enforce Security Group v Fikile and others (DA24/15) [2017] ZALAC 9 held that an employment contract can be terminated in a number of ways which do not constitute dismissal as defined in section 186(1) of the LRA, and one of such instances would be a fixed-term employment contract entered into for a specific period or upon the happening of a particular event. Once the event agreed to between the Employer and Employee materialises, there would ordinarily be no dismissal. The event in the case of the applicant is the filling of the promotional post. The applicant did not dispute that a Maths Departmental Head was appointed with effect from 01 April 2025.
The applicant has failed to prove, on a balance of probabilities, that he was unfairly dismissed by the respondent, in line with section 186(1)(b) of the LRA. He is therefore not entitled to any relief.

Award

I find that the applicant, Tinyiko Salmon Sumbane was not dismissed by the respondent, Gauteng Department of Education.
As a result of the aforesaid, the applicant’s application is dismissed.

Asnath Sedibane