View Categories

03 June 2026 – ELRC1119-25/26NC

Case Number: ELRC1119-25/26NC
Commissioner: Simon Beesnaar
Date of Award: 03 June 2026

In the ARBITRATION between

SAOU obo Sacco, Crystal
(Union/Applicant)

And

DEPARTMENT OF EDUCATION – Northern Cape
(Respondent)

Union/Applicant’s representative: Mr. Henk Brand – Union Rep (SAOU)
Union/Applicant’s address:

Telephone: 081 892 4280
Telefax:
E-mail: henkb@saou.co.za

Respondent’s representative:
Mr. Ricardo Britz – Acting Manager: Labour Relations
Respondent’s address:

Telephone: 067 421 3031
Telefax:
E-mail: ricardobritz@ncdoe.school.za

PARTICULARS OF THE HEARING AND REPRESENTATION

  1. This is the award in the arbitration matter between SAOU on behalf of Crystal Sacco, the applicant and the Northern Cape Department of Education (NC-DoE), the respondent.
  2. The referral is in terms of section 191(5) (a) of the Labour Relations Act, 66 of 1995 as amended (herein referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.
  3. The arbitration was scheduled on 30 March 2026 and concluded on 11 May 2026 online/virtually. Further that the parties requested to be allowed to submit in writing the Closing Heads of Arguments (HOAs) on or before 15 May 2026 and the request was granted.
  4. The applicant was present and she was represented by Mr Henk Brand from SAOU in his capacity as Union Representative. The respondent was represented by Mr. Ricardo Britz in his capacity Acting Manager – Labour Relations.
  5. The parties prepared and submitted into evidence their Pre-Arb minutes referred to herein after as Annexure “A1-4”. The Applicant’s bundle is Annexure “B1-85” and is accepted as common to both parties.
  6. The proceedings were conducted in English and were manually and digitally recorded. Mr. Brian Banga was also present as the Interpreter.

BACKGROUND TO THE DISPUTE

  1. The applicant worked as an Educator. She was also the Acting School Principal on a yearly Fixed Term Contract (FTC) of employment. She earned R 370 840.00 per annum. She started on 1 January 2022 and was terminated on 14 January 2026 after a decision was taken to advertise the post.
  2. The same position was advertised on 12 January 2026. The applicant applied. It is common cause that she was neither considered nor shortlisted. Aggrieved by the decision of the respondent she approached her union for assistance. On 16 February 2026, an unfair dismissal dispute was referred by the union on her behalf to the Council for conciliation.
  3. Conciliation was scheduled on 23 February 2026 but failed to resolve the dispute. The Union requested that the matter be resolved through arbitration. Nonetheless, the dismissal was disputed by the respondent. The relief sought by the applicant is compensation.

ISSUES TO BE DETERMINED

  1. The dispute is whether the termination of Ms. Sacco’s FTC of employment was substantively and procedurally unfair. After her FTC of employment was renewed several times, it was advertised and filled without being considered for shortlisting or renewal thereof.
  2. It must first be determined as to whether the applicant was dismissed or not, after her FTC of employment was terminated on 14 January 2026 after it was renewed several times. If I find that there was dismissal and should the dismissal be held to have been unfair, I must determine the appropriate remedy.

SUMMARY OF EVIDENCE AND ARGUMENTS

Applicant’s evidence:

  1. Ms. Sacco started on 1 January 2022 as an Educator at Goodhouse Primary School as per her appointment letter (see B14). Her qualifications included BA Degree and registration with the South African Council of Educators (SACE) as per B66-71. She confirmed that she is fully trained as an educator and has attended all necessary trainings to equip her to work as an Educator.
  2. She taught Grade 4 learners and was also Acting Principal at the school until she was terminated on 31 December 2025 (B75). Before she came to Goodhouse she was at Rooiwaal Primary School from August 2021 to December 2021 as a substitute teacher. There was a vacancy at Goodhouse Primary and Ms. Engelbrecht asked her to come over.
  3. She started on 1 January 2022 until 31 December 2025. She was appointed on a FTC which was renewed annually on the recommendations of the SGB. At the end of 2025, there was no advert and no recommendation to renew her contract as happened before. Normally the recommendation for renewal of her contract happens around November each year.
  4. She phoned the Circuit Manager, Ms. Kivido in December 2025 to make an enquiry about her post and the Principal post but there was no response. On 12 January 2026 she sent a message to the Circuit Manager again. She received a response late that evening on WhatsApp that she must report on duty (see B4).
  5. She was informed that the post would be advertised and that she can apply. She applied and gave her application documents to the School Administrator Ms Jusintha Rohman. She also serves as the SGB Secretary. The closing date for the advert was 14 January 2026.
  6. She maintained that she expected them to appoint her to the post because she has been there for four years. There were no issues raised with regard to her performance or misconduct. Further that her termination was abrupt and unexpected. While she gave all of her best to serve the school, and after four years of dedicated service, there was expectations that she would be appointed to the post.
  7. Under cross-examination she confirmed that she was appointed on a FTC that was renewed every year since 2022 until 31 December 2026. Further that she submitted her application for the advertised post in full.

Respondent’s evidence:

  1. Ms. Jusintha Caren Rohman is the Administration Clerk for the school since July 2023. She started at the school in 2021 as Reading Champ. Thereafter she became Foundation Phase Educator from 2022 to 2023. She confirmed that the applicant was Acting Principal at the school from 2022 until 2025. Further that she was appointed on a FTC.
  2. She then started as the Secretary for the SGB in 2022 to date. She submitted that the applicant started on a contract on 1 January 2022 to 31 December 2022. It was renewed on 1 January 2023 to 31 December 2023. The SGB was satisfied about her performance and recommended that her FTC be renewed.
  3. In 2025 they realised that she was not performing satisfactorily like in the previous years. The SGB then wrote a letter to the Department on 18 August 2025 that they were not entirely happy about her performance. Further that on 19 August 2025 there was a Departmental visit to the school by the District Office. The applicant was not present at the time. That was after the SGB letter to the District Office with regard to the applicant’s performance.
  4. On the 17 August 2025 the applicant was at the school premises where she invited her friends and they were drinking alcohol. That was one of the reasons they wrote to the District office about her conduct. Further that her attendance at the school was not satisfactory and that was a serious cause for concern especially taking into consideration the needs of learners.
  5. In September 2025, there was another Departmental visit made to the school. They were there to do investigation on the finances of the school and to inform the applicant about the complaint laid by the SGB against her. Further that they hoped that she would improve after she met with them, but there was no improvement.
  6. The SGB then took a decision not to renew her FTC at the end of 2025 and to advertise the post. They met with her in January 2026 and informed her that the post would be advertised and she may apply. She applied but her application documents were not complete. She did not attach her CV and was disqualified. The SGB recommended Mr. Newman for appointment.
  7. Ms. Ramona Lottering is the Acting Circuit Manager, Circuits 1 and 3. She started on 1 May 2025. She confirmed that the applicant was the Acting School Principal at Goodhouse Primary School which falls under Circuit 1. She sent the applicant a WhatsApp message in January 2026 to report at work for the purpose of hand over (see B64).
  8. She was satisfied that the SGB interviewed one candidate and appointed him. Further that the District Director had authority to appoint post level 1 Educator. Further that she consulted the District Director on the recommendations of the SGB.
  9. Ms. Celeste Witbooi was the Chairperson of the SGB for Goodhouse Primary School. She started in March 2025. She submitted that the applicant was appointed on a FTC. After her contract came to an end, they consulted with the District Office and HR to have the post advertised. The normal recruitment and selection process was followed and applications were received.
  10. A suitable candidate was identified and they made a submission to the District Director. The candidate they recommended was then approved for appointment by the District Director. She submitted that the applicant was also advised to apply but she did not qualify. Under cross-examination she submitted that the reason for not renewing the applicant’s FTC was because of her conduct and poor performance. A decision was then taken to advertise the post and fill it.
  11. She conceded that the applicant was not informed beforehand that her post would be advertised. It was advertised on 12 January 2026 when the school re-opened and the closing date was on 14 January 2026.
    ANALYSIS OF EVIDENCE AND ARGUMENT
  12. This is a referral in terms of section 191 of the LRA. The dismissal is in dispute. Section 192 of the LRA states that ‘in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and only then must an employer prove that the dismissal was fair’. This is particularly important when an employee alleges that she was dismissed, but the employer disputes the claim.
  13. Section 192(1) of the LRA places the onus to prove the existence of a dismissal on the employee. This essentially means that the employee must present evidence on a balance of probabilities that she has been dismissed. The issue before the Council is whether there has been a dismissal or not after the applicant’s FTC of employment came to an end on 12 January 2026 when the school re-opened. The same post was advertised and someone else was recommended by the SGB and approved by the District Director.
  14. It is common cause that the applicant was appointed on FTC of employment from 1 January 2022, which was renewed yearly until 31 December 2025. At the end it was not renewed as was in the previous years. As the applicant submitted her contract was renewed yearly and would be notified around November each year that it would be renewed. Towards the end of 2025, the SGB were just mum on whether her contract would be renewed or not.
  15. The applicant made several enquiries regarding her FTC but there was no response. She was only informed on 12 January 2026 when the school re-opened that her contract would not be renewed and the post was advertised. She was advised to apply but was neither shortlisted nor considered for appointment. The reasons submitted by the respondent for not renewing her contract and the decision to advertise the post was due to the fact that the applicant was not performing well coupled with poor attendance.
  16. This, in my view persuaded the SGB not to shortlist her or consider her for appointment. I therefore conclude that she was unfairly treated by the SGB, after they failed to notify her on time that her post would be advertised. They went to December 2025 holidays not knowing what her future was in terms of her employment. She was informed on 12 January 2026, the first time when the post was advertised and the closing date being 14 January 2026. The notice in my view was insufficient and was unfair.
  17. The applicant rushed in terms of submitting her application documents which are alleged to have been incomplete and as a result disqualified her. While the respondent indicated that they were pressed in terms of the time to fill the post, I am not persuaded by the submission. I do not believe they only became aware of the urgent need to fill that post only in January 2026, other than that they wanted to remove her out of the contestation because they were not happy about her performance.
  18. It is also unfair in my view for the SGB to write a letter of complaint to the District Office without saying anything to her with regard to her performance and conduct that she was drinking alcohol on the school premises. That was done behind her back and was malicious in my considered opinion. I therefore find that the applicant proved on a balance of probabilities that she was dismissed as opposed to the respondent’s submission, disputing the dismissal.
  19. I am also inclined to align myself with the applicant’s submission on the legitimate expectation of the renewal of her FTC of employment, was it not due to the conduct and poor performance as alleged by the respondent’s witnesses. Therefore, this termination constituted an unfair dismissal. The legislation contemplated that a claim that a FTC be renewed on the grounds of a legitimate expectation was a species of “dismissal” as defined in section 186 of the LRA, and was regulated by section 191 to be within the exclusive jurisdiction of the CCMA (see Zungu v Premier, Province of KwaZulu-Natal and another (2017)38 ILJ 1644 (LAC).
  20. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA/Council has the necessary jurisdiction to entertain the dispute in terms of section 191 of the LRA. I am therefore satisfied that the applicant was dismissed and further that the Council has jurisdiction on the matter. Further on, in University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) the Court held that the test for reasonable expectation was two-fold. The first deals with whether the employee actually expected the contract to be renewed and the second, with whether the expectation was reasonable. In my view the test has been met.
  21. I considered both the respondent and the applicant’s testimonies and conclude that while the respondent submitted that there was no dismissal, the applicant was indeed dismissed. Further that her dismissal was substantively and procedurally unfair.
  22. Having regard to the full conspectus of all relevant facts and circumstances of the matter, I will make the award hereafter.

REMEDY

  1. In terms of remedies for dismissal disputes related to FTC of employment, I am guided by what was held by the Labour Appeal Court in Buthelezi v Municipal Demarcation Board (2004)25 ILJ 2317 (LAC).
  2. The applicant asked for compensation to be awarded should I find in her favour. In considering a suitable remedy for unfair dismissal, I am guided by section 193 of the LRA. It states that (1) (a) … the Court or the arbitrator may –

(a) Order the employer to reinstate the employee from any date not earlier than the date of dismissal;
(b) Order the employer to re-employ the employee, either in the work in which the employee was employed before the dismissal or in other reasonably suitable work on any terms and from any date not earlier than the date of dismissal; or
(c) Order the employer to pay compensation to the employee.

  1. It is a settled matter that compensation is for the wrong done in failing to give effect to an employee’s right to fair procedure (see Johnson v Johnson (1999) 20 ILJ 89 (LAC)). Having considered the conspectus of the deprivation of her rights to fair procedure preceding the dismissal and for a valid reason, I will not hesitate to award compensation sought in the circumstances.
  2. In so doing, I also considered the guidelines set out in Kemp t/a Centrameld v Rawlins (2009) ILH 2677 (LAC); 11 BLLR 1027 in awarding compensation to the applicant. The applicant is currently without a job due to the unfair dismissal.
  3. In the result, I deem it fair and equitable to award the applicant compensation equivalent to six (6) months’ salary.

AWARD

46. The respondent the Department of Education-NC is ordered to pay the applicant, Crystal Sacco compensation (calculated at R 370 840.00/12 = R 30 903.00 x 6) which is an amount equal to R 185 420.00 (Hundred and eighty-five thousand, four hundred and twenty rand).

47. The respondent must pay the compensation amount stated in paragraph 46 above directly into the applicant’s bank account, last known to the respondent on or before 15 June 2026.

48. If an arbitration award orders a party to pay a sum of money, the amount earns interest from the date of the award at the same rate prescribed from time to time in respect of a judgement debt in terms of section 2 of the Prescribed Rate of Interest Act, of 1975 (Act No. 55 of 1975), unless the award provides otherwise.

Name: SM. Beesnaar (ELRC) Arbitrator