Case Number: ELRC1352–25/26GP

IN THE ARBITRATION BETWEEN:

NEHAWU obo Ncube and 2 others Applicants

and

South West Gauteng TVET College Respondent

ARBITRATION AWARD

Details of hearing and representation

1. This arbitration hearing took place in terms of the referral of the matter by the Applicants to the Education Labour Relations Council. It was heard over several days at the offices of the Respondent in Johannesburg. The last day of the hearing was on 15 July 2026.
2. The Applicants, Ivy Ncube, Andile Ncube and Tsungai Shumba were present and represented by Mr Themba Mntameka, union official from NEHAWU. The Respondent, South West Gauteng TEVT College, was represented by Mr Tebogo Mophaleng, Labour Relations Officer.

Issue to be decided

3. I must decide whether the Applicants were dismissed. If I find that the Applicants were dismissed, I must then determine if the dismissal is substantially fair and procedurally fair.

Background to the dispute

4. The parties have submitted signed pre-arbitration minutes. The following were captured as common cause issues: The Applicants where employed by the Respondent as follows: I. Ncube, 2010, A.Ncube, 2010 and T.Shumba from 2014 respectively. The Applicants earned salaries as follows: I.Ncube R43 757.11, A. Ncube, R23 126.26 and T. Shumba , R29 889.00 per month. Applicants received migration letters from DHET in 2015 and in 2020 because they are foreign nationals. They had to submit permanent residence documents and identity documents. Dismissal is in dispute. The dispute is whether the Applicants were dismissed or whether their fixed-term contracts came to an end. If I find that the Applicants were dismissed, whether such dismissal is substantively fair and procedurally fair.
5. The Respondent submitted a bundle of documents marked “Bundle R” and the Applicants submitted a bundle marked “Bundle A”. The parties were afforded an opportunity to submit closing arguments on 22 July 2026.
6. A comprehensive outline of the process was given to the parties, including but not limited to: how evidence is to be presented and how versions are weighed up; the standard of proving a case on a balance of probability, the onus in terms of section 192 of the Labour Relations Act 66 of 1995 (the LRA), the importance of challenging an incompatible version through cross-examination, the consequences of not doing so and the binding effect of the pre-arbitration minutes.

SURVEY OF EVIDENCE AND ARGUMENT

7. The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicants witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The recordings of the proceedings will reflect the complete testimony of the witnesses.

APPLICANTS’ CASE
Ivy Ncube testified under oath as follows:

8. She has been working for the college for 15 years. She received a letter from Mr T Padi who was the Deputy Campus Manager confirming her employment which stipulated that the contract is renewable as contained in bundle “A23” until further notice in 2010. She applied for temporary permit after 2 days as contained in bundle “A23”. Respondent played a role in all her applications.
9. She has signed migration letter as contained in bundle “A35” on 15 June 2015. This meant that a fully funded post was then taken by the department which is why she was paid by the Department of Higher Education (“DHET”). Her understanding was that she was permanently employed. Since then, no change was made.
10. She does not recall having a meeting with the Respondent where she was informed that her contracts is coming to an end. Another letter was written by Mr Monyamane who is the current Principal on 17 May 2023 which stated that she is on persal and her status was amended from contract to permanent. He wrote the letter assisting her to apply for general work permit. She got her work permit which will expire 22 November 2027. Every year the college must do a compliance check with the department. She has registered with SACE from 22 January 2010 which has evaluated her qualification as contained in bundle “A45 to 49”.
11. Another letter was written on 05 November 2025 by the college as contained in bundle “A68” stating that she was employed permanently. On 31 December 2025 she received a letter stating that her contract will expire on 31 December 2025. After she was given the letter, she could not come to the college. The subjects she taught are still offered by the college. She was not called to any meeting to discuss her future with the college. She has never been disciplined before.
12. Under cross-examination she testified that it is nowhere in the termination letter which says she must come back to work. She did not sign any temporary employment as contained in bundle “A65” but Lerato Kekana did. At times they worked without contracts. Her contract did not stipulate that when there are no students, she will have no work. She does not know the criterion used by the college to call other employees back. Expiry letter was sent to her via email by the Campus Manager on 11 December 2025, and he did not engage with her. It is not for her to decide if Mr Khuse had the authority to send her a letter stating that she is permanently employed.
13. Under re-examination she testified that she is not employed on a fixed-term contract, but she is employed permanently. Mr Khuse was the Assistant Director, there was no reason to doubt him. She has not seen any circular or communication which says foreign nationals should not be employed.

Andile Ncube testified under oath as follows:

14. She has been working for the Respondent since 2010 as a Lecturer. She migrated in 2015 where she was paid on persal by the DHET. This meant that her employment was amended from contract to permanent as contained in bundle “A75”. The Respondent assisted her in applications in her applications to Department of Home Affairs and all of them were successful.
15. She was issued with expiry of her contract on 11 December 2025. They had a meeting where they were told to stop coming to work and they will be called. Other employees were called back but she was not.
16. Under cross-examination she testified that expiry of contract letter was issued on 11 December 2025 when the college was closing. She received a letter on 25 January 2024 stating that she is permanently employed. She is aware of the form contained in bundle “R30”, and it is used when someone has to get a salary.

Tsungai Shumba testified under oath as follows:

17. She has been working since 2014. Her contract was amended from contract to permanent as contained in bundle “A116”. She received expiry of her contract letter in December 2025. It was communicated to her by the Campus Manager that they should not worry they are going to call them back. She got worried when she was not called back. She then wrote a letter to the college. She is aware that the subjects she was teaching are still being offered by the college.
18. Under cross-examination she stated that she is aware of the letter as contained in bundle “A6”and 7 but she did not sign them.
19. Under re-examination she stated that she could not go back to work because she was informed that she will be called back.

RESPONDENT’S CASE

Andre Schlmer testified under oath as follows:

20. Tshungai Shumba was on temporary employment. She was on ZEP that expired on 27 November 2025 so the DHET requested that they complete a temporary employment form to extend her contract. Applicants were never employed permanently. The Respondent wrote 29 expiry of contract letters to employees who were on contract which included South African employees whose contracts were coming to an end.
21. Under cross-examination he stated that he is aware of the Applicants’ employment status. The college benefited from the Applicants’ services, and they were paid in return. It was a decision that was made by the college around November 2025 to terminate the contracts. He could not answer as to why the Principal issued letters to Applicants changing their employment status from contract to permanent. He would have advised the Principal that the contents of the letters were inaccurate and inconsistent with applicable legal framework governing employment of foreign nationals. He is not familiar in ZEP processes. He did not know why are other employees were called back.
22. Under re-examination he stated that the college cannot employ Applicants on permanent basis even if they can help them with their visa applications. The Applicants have not complied with the requirement as contained in a letter from Department of Home Affairs. Other employees who complied have been employed permanently. Persal number is used whether you on contract or permanently employed.

ANALYSIS AND ARGUMENTS

23. Section 192 of the LRA states “, (1) In any proceedings concerning any dismissal, the employee must establish the existence of a dismissal.” (2) “If “If the existence of a dismissal is established, the employer must prove that the dismissal is fair.”
24. Arbitration hearings are not merely reviews of the employer’s decision to dismiss employees, or the propriety of the procedures followed by the employer (John Grogan Dismissal 320 (2002)). It is important to keep in mind that an arbitration hearing constitutes a full de novo rehearing on the merits as well as an investigation of the fairness of the procedure followed by the employer, should the latter be in dispute. The decision of the arbitrator is not reached with reference to the evidential material that was before the employer at the time of its enquiry, but on the evidential material placed before the arbitrator during the arbitration hearing. This means that all relevant evidence must be placed before the arbitrator in proper form, even if it has been fully canvassed at the employee’s disciplinary hearing. (See Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] JOL 20811 (CC, where the Court approved the LAC dictum in Count Fair Foods (Pty) Ltd v CCMA & Others [1999] 11 BLLR 1117 (LAC).
25. It is worth noting that parties were requested to address me firstly on whether the Applicants were dismissed and secondly whether the dismissal is substantively and procedurally fair. The Respondent maintained that the Applicants were not dismissed but their contracts came to an end. I indicated that should I find that the Applicants were dismissed then automatically their dismissal would then be substantively and procedurally unfair.

Whether the Applicants where dismissed

26. It is common cause that the Applicants migrated from being employed by the College Council to “DHET” from 2015 and they were allocated persal numbers. The Respondent disputed that the Applicants where dismissed. It is however, common cause that the Applicants were among 29 employees that received contract expiry in December 2025.
27. The Respondent’s witness testified that the college cannot employ Applicants on permanent posts even if they have assisted the Applicants with their immigration issues. He further testified that he did know why the Principal issued letters changing the status of the Applicants from contract to permanent status. In fact, all Applicants received the same letter. He also did not know why other employees were called to came back to work. This argument is rejected; the witness is a Deputy Principal which means he is in a senior position there is no way that he does not know why other employees where called back to work. I, however, agree with the witness’s definition of what constitutes a fixed-term contracts. He defined it as employment contract with specific start and end date. However, it is settled law that in order for a fixed-term contract to expire, fixed-contract must exist. The Respondent in the pre-arbitration minutes stated that there was no dismissal. The witness also maintained that the contract came to an end. There is no evidence before me to substantiate the Respondent’s claim that Applicants were on fixed-term contracts. I find that the Applicants were dismissed.
28. I will then continue to deal with the second aspect, which is which is whether dismissal is substantively and procedurally fair.

Procedural fairness and substantive fairness

29. In dealing with the second aspect of the dispute, the Respondent must prove that the dismissal is substantively and procedurally fair as required by section 188(1)(a) and (b) of the LRA. It is common cause that in 2015 Applicants where absorbed by DHET. The Respondent’s witness testified that they were not dismissed and he did not know why the Principal issued them with letter changing their employment status from contract to permanent. He would have advised the Principal that the contents of the letters were inaccurate and inconsistent with applicable legal framework governing employment of foreign nationals.
30. As alluded above, in order for a fixed-term contract to expire, it must exist. There is no evidence before me substantiating the Respondent’s claim that Applicants were on fixed-term contracts.
31. The Applicants conceded that they were aware that they needed to comply with the requirements in submitting proof of their permanent residency and Identity documents before amendment could be finalized. This was confirmed by the Respondent’s witness. This in my view, is a suspensive condition. Therefore, it cannot be that the Applicants were employed permanently without complying with the requirements as stated above. Based on the evidence before me, their employment would be confirmed as permanent after complying with the necessary requirements.
32. One must note that I do not have powers or jurisdiction to reinstate the Applicants beyond what they have agreed to with the Respondent. Particularly noting that Applicants are foreign nationals, certain requirements of Department of Home Affairs must be complied with before finalisation of their permanent employment. I am of the view that the Applicants’ right to work is limited by expiry of their current work permit or compliance with the necessary process.
33. I, therefore, find that the dismissal of the Applicants, Ivy Ncube, Andile Ncube and Tsungai Shumba to be procedurally and substantively unfair.

Relief

34. The Applicant stated that they sought retrospective reinstatement. Alluded above, reinstatement is limited by expiry of their current work permit, visas or compliance with suspensive conditions as per the letter issued in 2020 changing their statuses from contract to permanent.

Award

35. I find that the Applicants, Ivy Ncube, Andile Ncube and Tsungai Shumba were dismissed.

36. Their dismissal by the Respondent, South West Gauteng College is substantively and procedurally unfair.

37. The Respondent is ordered to retrospectively reinstate the Applicant, Ivy Ncube, Andile Ncube and Tsungai Shumba effective from 12 August 2026.

38. The Respondent is further ordered to pay the Applicant as back-pay as follows:
Ivy Ncube – R43 757.11 (monthly salary x 8 months) = R350 056.88
Andile Ncube- R23 126.26 (monthly salary x 8 months) =R185 010.08
Tshungai Shumba- R29 889.00 (monthly salary x 8 months) =R239 112.00

39. The Respondent is ordered to pay the Applicants as stipulated in paragraph 38 above on or before 31 August 2026.

Thabo Mathibedi
CCMA Commissioner