IN THE ELRC ARBITRATION
BETWEEN:

SPHUMELELE NHLANHLA NGCAMU Applicant
and
THE DEPARTMENT OF HIGHER EDUCATION
AND TRAINING (ELANGENI TVET COLLEGE) Respondent

ARBITRATION AWARD

Case Number: ELRC140-24/25KZN

Date of arbitration: 08 August, 30 September 2 December 2024, 5 February & 10 February 2025
Date of award: 27 February 2025

Mandlakhe Khawula
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were set down for 8 August 2024 and were partly heard. The ELRC then set the matter down again for 30 September, 2 December 2024, 5 February and 10 February 2025 when it was finalized.
2. The arbitration was initially held via a virtual platform and was subsequently heard face to face owing to poor network connectivity. The hearing was held at the Elangeni TVET College in Pine town.
3. The Applicant, Mr. Sphumelele Nhlanhla Ngcamu, was present and was unrepresented. The Respondent, the Department of Higher Education and Training, was represented by Mr. Xolani Mdluli, it’s Assistant Director for the Labour Relations Section. The parties provided a bundle of documents each.
4. The proceedings were digitally recorded.
5. The services of an interpreter were not requested. Parties requested to submit their closing arguments in writing. Parties were ordered to submit their closing argument by not later than 17 February 2025. Both parties failed to adhere to the request. They only emailed their closing arguments on 19 February 2025 hence the award is now due on 29 February 2025.

ISSUE TO BE DECIDED

6. I am required to determine whether the applicant was dismissed in terms of Section 186 (1) (b) (i) of the Labour Relations Act 66 of 1996 (LRA), if so, whether the dismissal was procedurally and substantively fair. Should I find in the negative, I must determine an appropriate relief. The applicant sought reinstatement as a relief.

BACKGROUND

7. On 15 January 2021, the Applicant was employed by the respondent Elangeni TVET College on a fixed term contract basis as a Lecturer at the Ntuzuma Campus of the Respondent. He alleged that he was dismissed on 31 December 2023. At the time of the Applicant’s dismissal, he earned gross remuneration of R21 985.07 monthly.
8. The Applicant stated that he has always been on 12 months fixed term contracts since 15 January 2021, however, in January 2024, it was not renewed. He then considered himself dismissed and lodged an unfair dismissal dispute with the ELRC because by such renewals and a verbal promise that was made to him, he reasonably expected the respondent to renew his fixed term contract of employment on the same or similar terms, but the respondent had failed to do so.
9. On 15 May 2024, the Applicant referred an unfair dismissal dispute to the ELRC challenging the procedural and substantive fairness of his dismissal.
10. The ELRC then scheduled the matter to be arbitrated before me as shown in paragraph [1] of this award.
11. The respondent’s case was that it is not in dispute that the applicant’s contracts were renewed on two occasions. However, one of the reasons why the applicant’s contract was not renewed is that in 2024, the student enrolment decreased. This impacted on the total number of lecturers’ contracts to be renewed. The renewal was then based on the last in first out (LIFO) principle.

SUMMARY OF EVIDENCE AND ARGUMENTS

12. I only summarized the evidence which I regarded to be relevant to the dispute and which assisted me in making my findings.

The Applicant’s case

13. The applicant was a single witness. He testified that on 15 January 2021, the respondent employed him on a 12-month fixed term contract which ended on 31 December 2021 . On 01 January 2022, he entered into another 12-month contract which expired on 31 December 2022 . On 01 January 2023, his contra was renewed . On 30 November 2023, he received a letter of non-renewal of contract . On 31 December 2023, his contract ended and in January 2024, it was never renewed as he had expected. The expectation to have his contract renewed on same or similar terms is reasonable.
14. He testified that when the classes commenced in January 2024, another lecturer by the name of Ms. N.E. Mthembu took over his duties. Mthembu arrived at Ntuzuma campus in July 2024, having been employed by the respondent in July 2023. This meant that the respondent required a lecturer.
15. Towards the end of 2023, the respondent issued an advertisement for positions including those of lecturers. The closing date was 23 November 2023. He qualified for at least 6 of the said positions. The position of building and structural construction, the position he occupied prior to the non-renewal of his employment contract was also advertised in the circumstances where he would have expected to continue teaching that class of N4s. As normal practice, he would have continued teaching the same students when they get to N5 in 2024, provided that there is no N5 teacher present. Importantly for this case, the applicant testified that instead of giving the position to him to teach the N5s, the position was advertised as a permanent position. He did not apply. There were positions that would have been offered to him to continue teaching.
16. When the year commenced in 2024, he learnt that all other fixed term lecturer’s contracts were renewed except for his contract. The applicant compared himself to another lecturer by the name of Dlamini. He stated that he is better qualified compared to him and based on the comparison, his contract should have been renewed.
17. In respect of LIFO, the applicant testified that Dlamini joined the respondent college on 26 February 2021 . The applicant was employed in January 2021. This questions the LIFO principle as was alleged by the respondent.
18. Ms. Mthembu joined the college on 10 April 2018. Her contract of employment ended on 31 December 2020. On 07 June 2023, she was re-employed. The Collective Agreement clarifies the issue of continuous service . It says, “broken service means the current unbroken service within the college as a lecturer provided that any broken service was of 120 calendar days or less”. The applicant testified that Mthembu has a broken service of two and half years. She joined the college when he was already there. Therefore, she would have been affected by LIFO. The applicant conceded that the renewal of a fixed term contract is informed by the students’ enrolment, and that reduction of students may decrease the number of lecturers required. He conceded that he does not have a teaching qualification, like wise Dlamini does not possess it. In respect of LIFO, Mthembu and Dlamini were employed after he had already been hired.
19. In November 2023, when Mpanza gave him a letter of termination of contract, he told him that it was just a matter of formality, his name has already been included in the list for duty load of 2024.
20. Under cross examination, it was put to him that what Mpanza said was null and void because it was not in writing. He did not agree with that proposition. It was further put to him that Mpanza said he does not remember saying those words. The applicant insisted that he uttered the words. He was informed that Mpanza was better qualified because on top of the National Nated Diploma, he is an Artisan, a qualified plumber. The applicant insisted that that does not make him better qualified. It was put to him that Dlamini is able to teach NEV practically. The applicant insisted that that brings him closer to his qualifications. He can also teach practical subjects. The applicant was informed that Zungu will testify that after Mthembu’s contract ended on 01 February 2020, in 2021, she was reappointed and placed at Pine Town Campus. The applicant disagreed. It was put to him that it is the duty of the college to assess the best candidates for that particular year. The applicant agreed but insisted that it should be done on the merits. It was put to him that inn 2023, he was moved from Ndwedwe Campus to Ntuzuma because there was extra funding. His response was that he did not know. He was further informed that in 2024, there was no funding hence the number of students was reduced. He applicant disputed that as a fact. It was put to him that the level of enrolment of students that Dlamini is responsible for, i.e. NEV program is still high. He applicant said Dlamini is not attached to any campus. He was asked why he did not apply when the same position he is complaining about was advertised as a permanent post. His response was that applying is a choice. There was no need because he was teaching at the same college. He was asked if he did not want a permanent position, his response was that he did, he did not thing that the positions were those who wanted to convert from a fixed term to permanent.
21. The applicant submitted his arguments, I considered them, however I do not need to regurgitate them as the record is readily available. The Respondent’s Case
22. The respondent led the evidence of two witnesses. Nkosinathi Mkhize (Mkhize) the Assistant Director HRM and D and Mr. Mpilenhle Goodenough Zungu (Zungu). He testified that he is a Manager of Ntuzuma Campus. In 2023, he applicant joined the Ntuzuma Campus because there was a group to be taught. At the end of the year, they do a projection for the following year. The funding determines the number of students they may take. The students are funded by the government through NFSAS and at times bursaries. In 2023, students were also funded by AFRI Pipes. This resulted into them having an extra group. They then requested Human Resources (HR) for an extra lecturer. That resulted to the applicant’s employment in 2023. In November 2023, they issued the applicant with a letter of contract nonrenewal.
23. The number of groups of students was reduced because the external funding from Agri pipes was depleted. The department reduced the funding grid and that resulted in fewer groups of students in 2024. That is how it came about that the applicant was issued with a non-renewal letter hence this case. His contract came to an end. In fact, the applicant was reminded that on 31 December 2023, his contract was coming to an end.
    The criteria used to appoint fixed term lecturers
24. They take the number of groups of subjects to be taught and look at all permanent lecturing staff. Once the permanent staff is fully loaded, they look at the contact staff per subject in terms of who will be able to teach the 4 subjects. Secondly, they look at the lecturer’s years of service to apply LIFO. They do that because the HR would look at the entire college, not just at campus. Thirdly, they look at the campus specific needs and the HR will renew the contracts accordingly. In 2003, in the Civil Engineering section, they had the applicant; Mr. Dlamini; MS. Mthembu; Mr. Mbanjwa; and Mr. Mdunge as contract employees. The applicant was compared to the other 4 lecturers. Dlamini was preferred over the applicant. He conceded that Dlamini was employed on 26 February 2021. Whereas the applicant was employed on 15 January 2021. However, Dlamini was preferred because of the campus needs. He is a trade tested plumber by profession, he is an artisan. The college needed his skills. The reason why they employed Dlamini is because he is dually qualified, he is a civil lecturer and a professional plumber. The applicant has not been trade tested as a plumber.
    Mthembu’s employment
25. When the applicant was not at work for a long time because of illness, Zungu requested the HR for the applicant’s temporary replacement because the students were without a lecturer. The applicant left at the beginning of trimester 2 and came back at the beginning of the 3rd trimester. That is how Mthembu was transferred from Pine Town to Ntuzuma Campus. Mthembu continued teaching up to the end of the year. The reason for keeping her was because a lecturer who was teaching mathematics had resigned. There was a need for an extra lecturer. Mthembu took over the duties of the lecturer who resigned. Both the applicant and Mthembu were kept. In 2024, Mthembu was retained because over and above the requirements for lecturer, she is a qualified teacher with professional qualifications. In terms of LIFO the applicant came after Mthembu. She did not take over the applicant’s duties.
    Advertisement for a permanent lecturer
26. In November 2023, the respondent placed an advert for permanent lecturing staff. At that time the applicant was still employed by the respondent. The applicant is qualified to apply for some of the positions . Nothing could have prevented the applicant from applying for any of the positions. The posts were filled.
27. Under cross examination, Zungu stated that Mthembu was never employed to replace the applicant. She continued to work at Ntuzuma Campus after the arrival of the applicant from long sick leave. Zungu was questioned if Dlamini was registered with the Plumbing Industry Registration Board. His response was that he does not know but the lecturing staff is only required to register with SACE.
28. The second witness of the respondent Mkhize took us through Mthembu’s contracts of employment up to 2024. He demonstrated by drawing the attention of the hearing to a printout from VIP system to show that Mthembu was employed for the first time on 01 February 2018 . Her contract ended on 31 December 2020. She was terminated at that time because the respondent was investigating the issue of ghost employees. The decision was taken that all fixed term lecturing staff must have their contracts terminated. On 12 April 2021, Mthembu was reappointed on a fixed term contract that was renewed every year in January till December 2024. He testified that from 2021 to 2023 Mthembu was at the Pine Town Campus. Mthembu was appointed to the College before the applicant. The rest of his evidence was in corroboration of Zungu’s evidence hence no need to repeat it. Regarding the issue of continuous service principle . He stated that in terms of the said clause, the period of absence for Mthembu does not constitute broken service because it was less than 120 days. Under cross examination, Mkhize conceded that from 1 March to 5 June 2023 Mthembu was not employed by the respondent.
29. Mkhize testified that if Mpanza had promised the applicant that his contract would be renewed, he had no power nor was he mandated to do so. Only the principal of the college has the power to take a decision regarding who will be retained. Mpanza is only a Senior Lecturer, not part of management.
30. The respondent submitted its closing arguments. I do want to regurgitate them on my survey as the record is readily available.

ANALYSIS OF EVIDENCE AND ARGUMENTS

The referral is dismissed. MANDLAKHE KHAWULA
ELRC ARBITRATORNS COUNCIL

I am called upon to determine on the balance of probability whether the termination of the applicant’s fixed term contract amounted to a dismissal in terms of Section 186 (1) (b) of the LRA. The applicant alleges that the respondent created an expectation that his contract of employment would be renewed on the same or similar terms, but it did not renew it at all. In doing so, I am obliged by law to provide brief reasons for my finding. The following are my reasons.

Section 188 of the LRA stipulates that a dismissal will be unfair unless the employer is able to prove that it was for a fair reason related to the employee’s conduct or capacity or the employer’s operational requirements and was effected in accordance with a fair procedure. Section 186 (b) (i) extends the definition of dismissal in the LRA. It makes provision that one of the definitions of a dismissal is that an employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms, but the employer offered to renew it on less favorable terms or did not renew it at all. It is trite that in order to prove unfair dismissal under the circumstances, the applicant will be required to establish the existence of the dismissal fist and must satisfy the onus of proving a reasonable expectation of renewal on same or similar terms. The Labour Appeal Court (LAC) in De Milander v Member of the Executive Council for the Department of Finance: Eastern Cape and Others (2013) 34 ILJ 1427 (LAC) held that “it was first necessary to determine whether the employee in fact expected her contract to be renewed. If the employee did have such an expectation, whether, taking into account all facts, that expectation was reasonable”. The LAC held that whether or not an expectation was reasonable will depend on whether it was actually and genuinely entertained.

In this case the applicant testified that he expected his contract to be renewed because when he was terminated, it had been renewed on two occasions. However, in 2024, he was replaced by Mthembu. Zungu’s explanation was that the employment of fixed term contract lecturers is determined based on the workload or students’ enrolment, funding and other college needs. Zungu further stated that the renewal of the applicant’s contract in 2024 was negatively affected by lack of funding as one of their external funders Agri pipe funding was depleted and the Department of Education also reduced its funding grid. This version was never contradicted; therefore, it stands. In my view, under the circumstances, the decision of the respondent’s management to reduce the number of lecturers was reasonable. In Black v John Snow Public Health Group (2010) 3 ILJ 1152 (LC), The Labour Court held that the evidence presented did not support the contention that the employee had a reasonable expectation that her contract would be renewed or made permanent. She knew that the organization was reliant on donor funding, and she had been notified that her contract would be renewed.

I now turn to deal with the criteria that was used to select an employee whose contract will not be renewed. The evidence of Zungu was that they used LIFO with the consideration of the college needs as the criterion. In respect of LIFO, Mthembu’s contracts of employment and the printout from the VIP system clearly demonstrated that Mthembu has been employed on fixed term contracts from 2018 to 2023. The question is, was she affected by the broken service clause? In my view, if regard is had to the evidence of Mkhize that broken service is any period above 120 days and that only between the period 1 March and 6 June 2023, that Mthembu was not employed by the college, clearly, she was not affected by the broken service clause because the said period is less than 120 days. Moreover, the respondent stated vividly that the LIFO principle is considered in conjunction with the needs of the college. The evidence that over and above Mthembu’s qualifications, she was preferred because she is a qualified teacher with professional qualifications was never contradicted.

In respect of Dlamini, it is not in dispute that he was employed after the applicant had already been there. He was preferred over the applicant because he is a professional plumber. In this regard the needs of the college were given priority.

Regarding the promise that Mpanza made to the applicant that he has been included in the list of lecturers whose contracts will be renewed, it was argued that Mpanza did not have the power nor mandate to make such a promise and that only the principal has such prerogative. There was no plausible argument that was raised to contradict this version. In view thereof, I accept that Mpanza had no such powers.

The position in question was advertised, the applicant ignored the advertisement. Under cross examination, he stated that responding to an advert is a choice. Clearly, the applicant is not interested in the lecturing position.

In the light thereof, if I have regard to the evidence presented to me in totality, it is my finding on the preponderance of probability that the applicant has failed to discharge his onus of proof that the termination of his fixed term contract constituted a dismissal in terms of Section 186 (1) (b) of the LRA.

In view thereof, I make the following award.
Award

I accordingly find that the applicant Sphumelele Nhlanhla Ngcamu was not dismissed by the respondent.

The referral is dismissed.

MANDLAKHE KHAWULA
ELRC ARBITRATOR