03 October -ELRC256-25/26GP

Case Number: ELRC256-25/26GP
Commissioner: PAUL PHUNDU
Date of Award: 02 October 2025

In the ARBITRATION between

NEHAWU obo Lindelani Mqayi
(Union/Applicant)

And

South West Gauteng College
(Respondent)

Union/Applicant’s representative: Mr. Themba Mtameka
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Ms Nqobile Zondi
Respondent’s address:

Telephone:
Telefax:

Details of hearing and representation

[1] This is the award in the arbitration between NEHAWU obo Nqobile Zondi (the Applicant) and the Department of Education-Gauteng (the Respondent). The award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA.

[2] The arbitration hearing was conducted on virtually on 27 August 2025.

[3] The applicant attended the arbitration hearing and he was represented by, Mr. Themba Mtameka from NEHAWU. The respondent was represented by, Ms Nqobile Zondi, its Employee Relations Official.

[4] The proceedings were conducted in English and were digitally recorded.

Issue to be decided

[5] I am required to determine whether the termination of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.

Background to the issue

[6] The applicant was in the employ of the Respondent from 1 December 2024 until 28 February 2025.
[7] The applicant was employed temporary on a three months fixed term contract as an Educator.
[8] The applicant is claiming that he was dismissed because the respondent created a reasonable expectation that his fixed term contract would be renewed. His fixed term contract was not renewed.
[9] The applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the applicant prays for retrospective reinstatement.
[10] The respondent raised a preliminary point and alleged that the applicant was not dismissed. The respondent alleged that the applicant’s temporary fixed term contract of employment came to an end.

The respondent’s case

[11] Mr. Tebogo Mophaleng testified, under oath, that he is employed by the respondent as Human Resources Manager. He stated that a position of a temporary lecturer became vacant because the Lecturer who is permanently employed in this position was seconded to another senior position temporarily.
[12] The position was advertised and in the advert it was expressly stipulated that the position was temporary for a period of 3 months. The applicant applied and he was appointed temporarily into the position up until it expired on 28 February 2025.
[13] According to Mr Mophaleng, the respondent did not create any expectation of renewal. The Council lacks jurisdiction to hear the matter as there was no dismissal.
[14] The Commissioner must dismiss the application.
[15] Under cross-examination Mr Mophaleng stated that the applicant knew from outset that the position was temporary and his appointment letter indicated same. He concluded that the position was not vacant.

The applicant’s case

[16] Mr Lindelani Mnqayi testified, under oath, that she was employed temporarily by the respondent as Lecturer at Roodepoort Campus, South West Gauteng College. He conceded that he entered into a three months fixed term contract of employment with the respondent.
[17] Mr. Mnqayi stated that the respondent created an expectation that his fixed term contract of employment would be renewed. He was shocked to learn in writing that his would not be renewed. He further stated that other Lecturers contracts were renewed and he was the only one whose contract was not renewed.
[18] Under cross-examination the applicant confirmed that his contract was temporary in nature and he was aware of the expiry date. However, he believed that there was work for him available.
[19] The applicant maintained that he was unfairly dismissed.
[20] Mr Martin Molefe testified, under oath, that he is employed temporarily by the respondent as Lecturer at Roodepoort Campus, South West Gauteng College. He said the Principal of the College promised all temporary lectures that they would be absorbed. However, the only obstacle was funding. Mr. Molefe stated that other Lecturers contracts were renewed and the applicant was the only Lecturer whose contract was not renewed.
[21] Under cross-examination Mr Molefe confirmed that the applicant was aware that his employment was temporary.

Analysis of evidence and arguments

[22] The dispute in essence amounts to whether, on the facts of the matter, the applicant has discharged the onus of proving that the termination of her contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
[23] In terms of Section 186(1) (a) (b) (i)(ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of 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 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..
[24] In terms of Section 188 of the LRA, “a dismissal that is not automatically unfair, is unfair if the employer fails to prove –

(a) That the reason for dismissal is a fair reason 
    (i) related to the employee’s conduct or capacity; or
    (ii) based on the employer’s operational requirement; and

(b) That the dismissal was effected in accordance with a fair procedure.”

[25] It is common cause that the parties entered into a written fixed term contract. The duration of the contract was three months. The applicant is challenging the decision of the respondent to terminate his fixed term contract of employment. The applicant alleged that the respondent created an expectation to renew his fixed term contract of employment. As a result, his dismissal was unfair.
[26] The applicant confirmed in writing by acknowledging and signing the fixed term contract that he understood the contract to be temporary employment which would come to an end on 28 February 2025. In essence, the applicant knew from the beginning of December 2024 the start and the end date of his employment. And he accepted that his employment was temporary in nature.
[27] The applicant failed to elaborate as to how the respondent created an expectation of renewal. As a result, I am not convinced that there was a reasonable expectation of renewal of her fixed term contract of employment.
[28] It is my finding that the applicant failed to prove that the respondent created an expectation that his fixed term contract of employment would be renewed.
[29] I am not persuaded by the testimony of Mr Molefe because it was not corroborated by the Principaland the same Principal was not called in as a witness to confirm this allegation.
[30] I accept the respondent’s argument that the applicant was not dismissed. I believe that the applicant’s fixed term contract of employment came to an end.

In NUM obo Mpaki v CCMA & Others (JR1983-2014 [2016] the Labour Court stated the following in par 31:
The first part of the test is whether the applicant had formed an expectation of renewal. In the absence of any such evidence the employee has failed to pass the first part of the test. On this ground alone the applicant has failed to discharge the onus to show that there was a reasonable expectation of renewal of the fixed term contract. The application on this ground alone should fail.

[31] Turning to the facts of the present case, it is my finding that the applicant has failed to discharge the onus of showing in the very first instance that he subjectively and objectively had an expectation that his contract would be renewed.
[32] The contract of employment came to an end as per the terms stipulated in the contract of employment. Therefore, there was no dismissal.

Award
[33] It is my finding that there was no dismissal.
[34] The respondent acted fairly in terminating the contract of employment that was entered into between the parties.
[35] The Applicant is not entitled to any relief.
[36] The applicant’s referral of a dispute is dismissed.