Panelist: THABO MARUPING
Case No.: ELRC594-24/25FS
Date of Award: 24 FEBRUARY 2025

In the ARBITRATION between:

SAOU obo MAKETERIE, A
(Union / Applicant)

And

FREE STATE: DEPARTMENT OF EDUCATION

(Respondent)

Applicant’s representative: MS. HESTER HUMAN    
Applicant’s address:    DOE- BLOEMFONTEIN DISTRICT OFFICE   
BLOEMFONTEIN    
Telephone:      
Telefax:        
Email            

Respondent’s representative:    Mr. Solomon Moloi   
Respondent’s address:   DOE- BLOEMFONTEIN DISTRICT OFFICE   
    BLOEMFONTEIN    

Telephone:      
Telefax:        
Email        

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration into the abovementioned alleged unfair dismissal dispute referred to the Education Labour Relations Council (ELRC) in terms of section 191 of Labour Relations Act 66 of 1995 (the Act).
2. The matter was partly-heard on, 10 December 2024 and finalised on, 31 January 2025.
3. The applicant Ms. A Maketerie was represented by Ms. Hester Human from SAOU.
4. The respondent was represented by Mr. S Moloi, Labour Relations Officer within the respondent Directorate.
5. One bundle of documents was used as documentary evidence named, “Bundle “A” from the applicant, and respondent elected to use the same bundle of evidence.
6. Parties submitted oral closing arguments on, 31 January 2025
7. The hearing was conducted in English, and was digitally recorded.

BACKGROUND

8. The Applicant was employed as an educator at Bergmanshoogte Primary School, in the Free State. She was employed as Grade 1 educator on, Fixed Term Contract (FTC) which was rolled over since 2015.
9. She was on a final year of her B.Ed. Foundation Phase, and was offered a bursary by the respondent to complete her studies.
10. The applicant’s employment was terminated by the respondent, on 31 July 2024.
11. The alleged reason for termination of the FTC was that the applicant failed to submit South African Council for educators (SACE) certificate as a legal requirement.

ISSUES TO BE DECIDED:

12. I must decide whether the dismissal of the applicant was substantively and procedurally fair.
13. If it is found to be unfair, a competent remedy will be determined.
    SURVEY OF EVIDENCE
    Respondent’ Case
14. The applicant first witness, Ms. A Maketerie testified under oath, that she was employed as an Admin Clerk since, 13 March 2007, and later employed as a Grade 1, educator since, 01 July 2015.
15. She stated that she received eight roll over FTC from 2015 – December 2023. She testified that from, 01 January 2024, she worked another six months without an employment contract, until 31 July 2024.
16. She argued that even her performance assessment showed that she exceeded the respondent’s requirements.
17. She also indicated that the respondent offered her a bursary to complete her B.ed. Foundation Phase, and she is in her final year.
18. She stated that she worked until 30 July 2024, and first week of August 2024 and was not paid by the department.
19. She further argued that her contract was terminated without a notice, and she was very surprised when that happened. She stated that the Principal was also surprised by the termination, as there was an expectation to be given extension until 31 December 2024. She argued that by being offered a bursary extension, the expectation was created that her contract will end in December 2024.
    Respondent’s Case
20. The respondent, Mr. Solomon Moloi testified under oath, that indeed the applicant was given recurring six months FTC since 2015.
21. He stated that the respondent sent circular in 2023 to all schools, stating that all FTC of educators without SACE certificate must be terminated.
22. He agreed that the applicant last signed FTC, 01 July 2023 – 31 December 2023, and, 01 January 2024 – 31 July 2024 the applicant worked without an employment contract.
23. Under cross examination the respondent stated that he cannot confirm that the applicant was served with the circular on the SACE certificate requirement.
    ANALYSIS OF EVIDENCE AND ARGUMENTS
    SUBSTANTIVE FAIRNESS OF THE DISMISSAL
24. Section 138(7) of the LRA requires that I submit an arbitration award with brief reasons. I have taken into account all the relevant evidence and arguments, but will only refer to those evidence and arguments necessary to substantiate my award.
25. Turning Section 186(1)(b)(ii) of the LRA, which states:

“(b) An employee employed in terms of a fixed term contract of employment reasonably expected the employer-
…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.” (my emphasis)

26. The Based on the evidence let, it was proven that the Applicant contract was a FTC. It was common cause that the fixed term contract was rolled over more than eight times. The onus is on the Applicant to prove, that she had a reasonable expectation that she will be retained to her position.
27. Our Courts have held that the test for a reasonable expectation is two-fold; the first being, whether the employee expected the contract to be renewed; and the second being, whether the expectation was reasonable. See University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), and MEC for the Department of Finance, Eastern Cape v De Milander and others [2011] 9 BLLR 893 (LC).
28. In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354, it was held that the second part of the test for reasonable expectation, is whether the subjective expectation, objectively assessed is considered reasonable.
29. The testimony on behalf of the Applicant was that, notwithstanding her fixed-term contract, she was offered a bursary for studies ending in December 2024. She worked her last six months without a contract, 01 January 2024 – 31 July 2024. She indicated that she wished to have been given a notice, prior to her termination, but she was surprised. I am therefore satisfied that the Applicant has demonstrated on the balance of probabilities that she had an expectation to be retained in her position. She had thus satisfied the first requirement for a reasonable expectation.
30. I must now determine whether the expectation, objectively assessed, is reasonable. Once again, the applicant had presented a convincing case. The respondent failed to submit evidence based on SACE certificate as a requirement, and date as to when it must be attained. Furthermore the respondent failed show that the applicant was made aware of such requirement. There was no effective challenge from the respondent on the evidence of the applicant, only a concession that the applicant worked, 01 January 2024 – 31 July 2025 without a FTC.
31. Objectively assessed the Applicant has made out her case, of a reasonable expectation of renewal of the contract. Together those issues for me created reasonable expectation. The respondent chose not to defend the claim of reasonable expectation; they must then fall on their own sword
32. I have considered all the evidence rendered and find that the case of the Applicant was more probable than that of the Respondent; in that the expectation, objectively assessed, was reasonable. I find that Applicant was therefore dismissed and her dismissal was substantively and procedurally unfair.
    I turn to Relief:
33. To determine the competent remedy, I have considered, amongst other things, section 193 of the LRA, the wishes of the applicant, the merits of this case and the security of employment. I have considered the evidence, that the SACE certificate being a requirement for educators and applicant not in possession of it. It would not be practical to order reinstatement for the Applicant. It would not be a competent remedy. There is no evidence at my disposal to consider re-employment. I therefore find that compensation would be the appropriate remedy in this matter. The Applicant could only have a reasonable expectation that her last unsigned FTC was six months and effectively expecting a continued six months FTC.
34. I therefore believe that the dismissal of the Applicant was substantively and procedurally unfair. I shall order, 6 months as compensation, and that would be just and equitable in these circumstances. The compensation is calculated as follows: R 21 884.25 per month x 6 months = R 131 305.50. (Less statutory deductions)

Award

35. The applicant, Ms. A Maketerie, had a reasonable expectation that she would be retained in her position, by the respondent, until she is given a notice of termination of FTC with reasons.
36. The applicant was therefore dismissed and her dismissal was substantively and procedurally unfair.
37. The respondent is ordered to pay the applicant compensation as follows: R 131 305.50 (Less statutory deduction)
38. The respondent must pay the applicant in the same manner she used to pay the applicant in the past.
39. The compensation must be paid by no later than, 31 March 2025.

Thabo Maruping
ELRC Arbitrator