Case Number: ELRC 563-25/26NW
Commissioner: Annelie Bevan
Date of Award: 7 September 2026

In the matter between

T SEMETSE

(Union/Applicant)

And

NORTH WEST PROVINCE, DEPARTMENT OF EDUCATION

(Respondent)

Details of the hearing and representation

1. The ELRC scheduled the arbitration for the unfair dismissal dispute between T Semetse, the Applicant and the Department of Education, North West Province, the Respondent, for 09h00 on 11 and 12 August 2026 at the Respondent’s premises in Vryburg.
2. The Applicant was present and represented by Mr Renoster of Du Plessis Vivier Attorneys, Vryburg, and Ms Phuswane represented the Respondent. The arbitration did not proceed on 11 August 2026 because Ms Phuswane was booked off sick, but it continued on 12 August 2026 and was finalised on that date. Mr R Kwayi served as the interpreter.
3. The arbitration was electronically recorded, and I made typed notes.
4. The parties requested to submit written closing arguments by 31 August 2026.

The issue to be decided

5. I must decide whether the Respondent’s decision to terminate the Applicant’s fixed-term contract was a procedurally and substantively unfair dismissal, and if so, the appropriate relief.
6. The Applicant seeks compensation.

Background to the matter

7. The Applicant referred an unfair dismissal dispute to the Council on 21 August 2025, after her fixed-term contract of employment was terminated on 31 July 2025. The matter was not successfully conciliated and was scheduled for arbitration before me on 23 October 2025. On this date, the issues in dispute between the parties were limited on record.
8. On 26 January 2026 the matter proceeded and Mr Renoster, an attorney, represented the Applicant. Bundles of documents were exchanged. The Respondent’s first witness, Mr Lebethe, testified. On 27 January 2026, Mr Lebethe was re-examined. The Respondent called its second witness, Ms Molefi. The Commissioner requested this witness to disclose the Applicant’s personnel file. The matter was postponed to 27 February 2026 to allow her to obtain the file.
9. On 27 February 2026 the matter could not proceed as the interpreter and the Respondent’s second witness were sick and not available. On 9 April 2026 the Respondent’s second witness completed her evidence, and the Respondent closed its case.
10. On 15 June 2026 the matter again could not proceed as the Respondent’s representative was booked off sick, but on 12 August 2026 the Applicant’s case was finalised.
11. The parties agreed that the following issues were common cause:
    11.1 The Applicant refers an unfair dismissal dispute in terms of section 186(1)(a) of the Labour Relations Act 66 of 1995, alleging that her employment was terminated by the Respondent.

11.2 The dismissal of the Applicant is not in dispute.
11.3 The Applicant applied for the post of Grade R Teacher at Kgosithebe Combined school and the Respondent appointed her in the post on 1 January 2022 on a fixed-term contract of one year.
11.4 The Applicant signed assumption of duty forms in 2022, 2023, 2024 and 2025.
11.5 The Applicant has a Level 5 Early Childhood Development SACE certificate, which is not the correct qualification for the post she occupied.
11.6 The Applicant earned a gross salary of R26 000-00 at the time of her dismissal.
11.7 The Respondent informed her in writing in a letter dated 5 June 2025 that her contract would be terminated on 31 July 2025. She received this letter on 17 June 2025.
11.8 The reason for the termination of her contract was that she is not in possession of the correct minimum qualification.
12. The parties agreed that the following issues remained in dispute between them:
12.1 Procedural Fairness: The Respondent did not follow any process to inform her that her qualification is lacking or request her to submit the correct qualification;
12.2 Substantive Fairness: (a) The Respondent appointed her in the position well knowing what qualification she has. (b) She rendered her services to the Respondent every year without any problems, while the Respondent knew what qualification she had. (c) She is currently furthering her studies and is in her second year of the B-Education in Foundation Phase Degree.
13. The Applicant confirmed that she does not rely on a reasonable expectation of renewal. She argued that her fixed-term contract was terminated prematurely and unfairly. She initially sought reinstatement but later amended her claim to compensation, given the applicable qualification requirements and the collective agreement. She was denied the opportunity to make representations and indicated that she was furthering her studies in Education at the Foundation Phase. She is currently in her second year.
14. The parties submitted the following bundles of documents: The Applicant submitted bundle “A”, and the Respondent submitted bundle “R”.

Evidence and submissions of the parties
Mr OL Lebethe, the principal of Kgosetebe Combined School since 1 March 2024, testified under oath:
15. He confirmed knowing the Applicant as a former teacher at the school. He stated she was appointed temporarily and her contract was terminated on 31 July 2025.
Circumstances leading to the termination
16. The witness testified that the Applicant’s termination arose after she complained about non-payment of her salary on 26 April 2025. HR advised him that she had already been terminated and instructed him to inform her. He requested that the termination be deferred to June and that she receive one month’s notice. Following a further salary complaint to the SGB on 11 June 2025, the Applicant requested written confirmation of termination, which was provided on 17 June 2025. Her contract terminated on 31 July 2025, but she continued reporting for duty and refused to vacate the school premises.
Reason for termination
17. The witness testified that the Applicant was informed on 5 June 2025 that she was not suitably qualified for the position and that her contract would be terminated. He confirmed this through a contemporaneous school logbook entry in his handwriting. He clarified that the Applicant remained employed and was paid for April and May 2025, and that she subsequently received written notice of termination on 17 June 2025.
Procedural process
18. The witness testified that the Applicant was informed of the qualification issue verbally on 5 June 2025 and in writing on 17 June 2025, and that he was unaware of any further process being required or followed. He further maintained that the Respondent complied with the four-week notice period under section 37(1)(c) of the BCEA.
Applicant’s qualification
19. The witness acknowledged that he knew the Applicant was underqualified when her contract was renewed, but understood that she was studying towards the required qualification. He confirmed that she held an ECD qualification, which was insufficient for the position.
Recruitment and appointment process
20. The witness explained that recruitment begins at school level, with the school identifying suitable candidates and submitting its recommendation to HR. HR makes the appointment, subject to the District Director’s final authority. The District Director also signed the termination letter. He confirmed that he did not regard termination for failure to meet the minimum qualification requirements as wrong.
Hearsay
21. The Commissioner raised an objection on hearsay grounds to the witness’s evidence concerning what Ms Molefi from HR told him about the Applicant’s termination, with the admissibility and/or weight of the evidence reserved for later determination.

Under cross-examination, he testified:
22. The witness confirmed that the Applicant was already employed when he became principal in March 2024 and continued into 2025. However, he could not confirm the terms or duration of her contract, as the assumption-of-duty document did not specify these or contain termination provisions. He had also not seen her contracts or assumption-of-duty documents for 2022–2024.
Circumstances surrounding the alleged termination
23. The witness testified that the Applicant’s salary complaint in April 2025 led to his involvement. HR, through Ms Molefi, informed him that the Applicant had already been terminated, although he was initially unaware. He then informed the Applicant on 5 June 2025 that her employment would be terminated, explaining that he understood she remained under contract because HR indicated she would still be paid. He proposed one month’s notice, but confirmed that HR ultimately determined the notice period, which was extended beyond his initial proposal.
Contradictions regarding dates of termination
24. The cross-examination highlighted significant inconsistencies regarding the Applicant’s termination dates and contractual status. Although the Applicant was allegedly terminated in March 2025, she signed an assumption-of-duty document on 5 May 2025 and was thereafter required to serve notice. The witness could not explain the period covered by the document or why it was only signed in May. He also confirmed that the Applicant was paid for January–March 2025, but not April–May, creating further uncertainty regarding the timing and status of the alleged termination.
Applicant’s qualification
25. The witness confirmed that he knew the Applicant was underqualified and that she was studying towards the required qualification, although he could not recall when she told him this. He did not disclose her qualification status to the Department, stating that he was not at liberty to do so. He nevertheless acknowledged that the Department could have addressed her qualification earlier had he informed it, although he was uncertain what decision it would have taken.
Recruitment and appointment process
26. The witness explained that recruitment begins at school level, where candidates’ CVs and supporting documents, including qualifications and SACE certificates, are considered before referral to HR. He confirmed that the school does not make the final appointment and that he could not confirm whether the Applicant’s qualifications were verified or disclosed to the principal or Department at the time of appointment. He further acknowledged that an underqualified candidate could be referred to the Department for consideration, although the Department makes the final appointment decision.
Knowledge of the Applicant’s qualifications
27. The witness could not dispute that the Applicant may have disclosed her qualifications when originally applying, as he was not present during the 2022–2024 application processes. For 2025, however, he testified that neither the SACE certificate nor qualifications were attached to the assumption-of-duty documentation, disputing the Applicant’s version that she submitted these documents each time.
Collective agreement
28. The witness confirmed that the collective agreement commenced in September 2025 and provides protection for employees found to be underqualified. He ultimately accepted that, under the current agreement, an employee in circumstances similar to the Applicant’s could not have been terminated in the same manner. He further accepted that he would align himself with the collective agreement, rather than maintain his earlier view that the termination was correct.
Applicant’s disclosure and reason for termination
29. The witness could not substantively dispute the Applicant’s version that she had disclosed her qualifications when applying and that the Respondent was aware of them. He maintained, however, that the logbook entry was only a summary of the discussion and disputed that he failed to inform her that she had previously disclosed being underqualified.
Applicant’s contractual history
30. The witness confirmed that the Applicant had been employed for several years but could not confirm her contractual arrangements for 2022–2024. He confirmed that she was paid from January to March 2025 and signed an assumption-of-duty document on 5 May 2025. However, he could not satisfactorily explain the circumstances linking the alleged March termination, subsequent renewal, May assumption of duty and July termination.
31. The Applicant put it to the witness that the Respondent was best placed to assess her qualifications at appointment and that she was never informed that she failed to meet the qualification requirements. The witness could not provide a substantive response and simply stated, “no comment.”

Under re-examination, the witness testified:
Collective agreement
32. The witness was referred to Collective Agreement No. 2 of 2025, which was implemented on 29 September 2025. He confirmed that the Applicant’s termination notice was issued on 17 June 2025, with termination effective 31 July 2025, and therefore preceded the implementation of the collective agreement. He consequently accepted that the agreement did not apply to the Applicant.
Notice period
33. The witness confirmed that the Applicant was given four weeks’ notice, from 17 June to 31 July 2025. He was unaware of any further process required beyond the verbal and written notification when dealing with an employee who did not meet the required qualification.
Applicant’s qualification
34. The witness maintained that, regardless of when the Department became aware of the Applicant’s qualifications, she remained underqualified for the position. He confirmed that informing the Department earlier would not have changed her qualification status.

The Respondent’s second witness, Mrs S Molefi, testified under oath in Setswana with the assistance of an interpreter:
35. The witness is a Principal Personnel Officer (PPO) in the Department of Education’s Human Resources division, a position she has held for approximately nine years. Her responsibilities include processing educator appointments and payments.
Applicant’s salary and personnel file
36. The witness testified that, while processing the Applicant’s April 2025 salary, she discovered that the Applicant had already been terminated on the Department’s system. She explained that reinstating a terminated educator for payment requires an assumption-of-duty form, supported by the SACE certificate, identity document and relevant qualifications.
Applicant’s qualification
37. The witness testified that, after reviewing the Applicant’s assumption-of-duty documentation, HR determined that she lacked the required teaching qualifications. HR accordingly informed the principal that she was not appointable and that her employment should be terminated on notice to enable the appointment of a suitably qualified educator. The Department prepared a termination letter and sent it to the principal for delivery to the Applicant.
Applicant’s temporary appointment
38. The witness confirmed that the Applicant was a temporary educator. Her involvement arose when the principal contacted HR regarding her unpaid April 2025 salary and the process of returning her to the system. Upon reviewing the assumption-of-duty documentation, the witness identified that the Applicant did not possess the required qualifications.
39. The witness testified that the Applicant’s file was previously handled by her former supervisor, Ms C. Setlhalefo, who subsequently retired.
Under cross-examination, she testified:

Processing of salaries and verification of qualifications
40. The witness confirmed that HR processes educator salaries and appointments based on qualifications, with principals submitting the required documentation. Upon renewal, the documentation is scrutinised again, including the assumption-of-duty form, SACE certificate, ID and qualifications. However, she clarified that she does not personally scrutinise every document on each renewal, as educators are initially admitted to the system based on their qualifications and their fixed-term contracts are subsequently renewed.
Applicant’s salary
41. The witness confirmed that the Applicant was paid for January–March 2025 because her 2024 contract remained on the system until 31 March 2025. She disputed that the Applicant signed an assumption-of-duty document or submitted supporting documents in January, stating that she signed the document only on 5 May 2025.
Applicant’s previous documentation and qualifications
42. The witness acknowledged that the Applicant had previously submitted employment documentation but clarified that she did not handle the file during 2022–2024. She only scrutinised the Applicant’s qualifications in April 2025, comparing the documents submitted by the principal with those on the Department’s file. She accepted that someone must have previously verified the qualifications, but could not identify who, and had no evidence that the Department had been informed before April 2025 that the Applicant was underqualified.
43. The witness could not confirm what occurred during the Applicant’s previous appointments, as she had not handled the file at the time. She accepted that the Applicant may have been appointed in error if her qualifications had been scrutinised and found insufficient, and that such an appointment would constitute a mistake.
Department’s knowledge of Applicant’s qualifications
44. The witness could not confirm that the Department knew the Applicant’s qualifications at the time of her earlier appointments, but also could not provide evidence that it did not know. She confirmed that the same qualifications were already in the Applicant’s file, indicating that someone in the Department had previously dealt with them, although she could not identify who or what conclusion was reached.
April 2025 interaction with the principal
45. The witness confirmed that the principal contacted her in April 2025 regarding the Applicant’s unpaid salary and the process of returning her to the system. She instructed him to resubmit the assumption-of-duty form and supporting documents, including qualifications, SACE certificate and ID. She maintained that the discussion initially concerned system reinstatement, not termination, and stated that she was unaware of the principal’s version that the documentation was required to facilitate termination. She confirmed that HR prepared and sent the termination letter to the principal, although she could not recall the exact issue date.
Applicant’s qualifications submitted through the principal
46. The witness confirmed that the Applicant’s assumption-of-duty documentation and qualifications were submitted through the principal. She maintained that, under normal procedure, an assumption of duty should always be accompanied by the relevant qualification documents, and that the qualifications in the Applicant’s file were those submitted by the principal.
Reason for termination
47. The witness maintained that once HR determined that the Applicant did not possess the required qualification, the appropriate procedure was to declare her not appointable and terminate her employment on notice to allow for the appointment of a suitably qualified educator. She confirmed that this procedure was followed, but could not confirm whether a replacement educator was ultimately appointed.
Applicant’s alleged continuous disclosure of qualifications
48. The witness did not accept or reject the Applicant’s version regarding the continuous submission of her qualifications, as she was not responsible for the file during the earlier years. She maintained that the qualifications on file were not relevant to the position, but provided no substantive evidence disputing the Applicant’s assertion that she had never concealed her qualifications or been informed that they were inadequate.
Termination date and Departmental system
49. The witness maintained that the Department’s system reflected that the Applicant’s fixed-term contract expired on 31 March 2025, based on information entered by a system capturer. The Commissioner directed that the Applicant’s file and system printout be produced to verify the contractual position. The physical file could not be obtained due to a power failure, although the system printout was obtained, and the matter was postponed to 27 February 2026 for production of the outstanding documents.

Mrs Molefe testified under oath in evidence in chief in relation to the personnel file of the Applicant:
50. The witness testified that the Applicant’s service record reflected reappointment from 1 April to 31 July 2025, with “termination of service” as the reason, following the previous contract end date of 31 March 2025. She confirmed that the minimum Grade R qualifications were a 360-credit Diploma in Grade R Teaching or a 480-credit BEd in Foundation Phase, neither of which the Applicant possessed.

Under cross-examination, she testified:
51. The witness confirmed that the Applicant’s service record reflected reappointment from 1 April to 31 July 2025, while the previous system record ended on 31 March 2025. She could not identify documentary proof explaining the 31 March termination date. The 2022–2024 assumption-of-duty documents were signed in January, while the 2025 document was completed only in May. She maintained that the Applicant’s contract ended on 31 March according to the system, but could not confirm who captured the date or substantiate the Applicant’s alleged earlier January 2025 assumption of duty. She also could not comment on whether the Applicant was terminated for being underqualified, responding “no comment.” The issue of the alleged non-payment of the March 2025 salary was raised, and the Respondent’s objection was not upheld.

Under re-examination, she testified:
52. The witness confirmed that the Applicant did not possess the required qualifications for the teaching position and was nevertheless given the required four weeks’ notice upon termination.
53. The witness confirmed that the Applicant was paid her March 2025 salary, with the salary advice reflecting a pay date of 26 March 2025. She stated that the allegation that the March salary was not paid was incorrect, while confirming that the April salary issue had been raised with her.
54. The witness confirmed that if the Applicant’s contract ended on 31 March 2025, this would be reflected as the termination date on her service record. She further explained that system-captured dates are reflected on the record but may subsequently be amended.

The Applicant’s case:
The Applicant testified under oath in evidence-in-chief that:
Appointment and annual assumption of duty
55. The Applicant testified that she was employed as a Grade R teacher from 2022 to 2025 and completed an assumption-of-duty form at the beginning of each year. She stated that she was appointed after applying in 2021 and that the same process was followed in 2023, 2024 and January 2025. She maintained that the forms did not specify an end or termination date and that she was not informed of the duration of her appointments.
Appointment documentation
56. The Applicant confirmed that the bundle contained assumption-of-duty documents for 2022–2025. She stated that she had only received one formal appointment letter, reflecting an appointment from 1 January to 21 December 2023, and that she was not issued annual appointment letters thereafter. She accepted that the documents indicated annual appointments, and confirmed that the 2024 assumption-of-duty document was not accompanied by an appointment letter.
2025 Assumption of duty and the Department’s system
57. The Applicant disputed the 2025 assumption-of-duty document, maintaining that she completed one in January 2025, as in previous years. She testified that the Department’s system subsequently reflected her termination, resulting in non-payment of her salary, and that a new assumption-of-duty document was required to restore her to the system and enable payment.
Contractual period and previous years
58. The Applicant testified that she signed assumption-of-duty documents in January 2022, 2023 and 2024 and worked through December each year. She maintained that her 2024 employment continued until December, although she initially did not receive her December salary. After approaching the principal and then the SGB, she lodged a complaint and subsequently received payment.
Notification of termination
59. The Applicant testified that she was first expressly informed of her termination on 5 June 2025 by the principal. She was instructed to continue working until the end of the school holiday and not return when schools reopened in July, which she said was the first time she became aware of the termination.
Salary payments
60. The Applicant confirmed that she complained about non-payment of salary and received payment for April, May and June 2025, and believed she also received July’s salary. She questioned why the Respondent would continue paying her if it considered her contract had ended. She accepted that she was first removed from the system, later reinstated and paid, and then terminated again, which she regarded as a deliberate decision by the Respondent.
Applicant’s qualification
61. The Applicant relied on the collective agreement and maintained that her NQF Level 4/5 qualification met the applicable requirements. She noted that the agreement was signed on 29 September 2025, after she had received her termination letter on 5 June 2025, and inferred that the qualification requirements must have changed before her termination.
Applicant’s view regarding fairness
62. The Applicant testified that she would have regarded the situation as fair if she had been allowed to complete the 2025 working year and was then not reappointed in January 2026 due to not meeting the qualification requirements.
Relief sought
63. The Applicant sought compensation from the date of termination through December 2025, effectively claiming remuneration for August to December 2025.

Under cross-examination, she testified:
Contract termination end 2025
64. The Applicant accepted that she did not meet the NQF Level 6 qualification requirement and would have accepted her contract ending in December 2025. She considered the termination unfair because the Respondent departed from previous practice and failed to consult with her properly. She acknowledged being informed of the impending termination on 5 June 2025, with termination ultimately effective 31 July 2025, and confirmed that she was paid for the period she worked up to July.
Collective agreement
65. The Applicant accepted that the collective agreement was signed on 25 September 2025, after her employment had terminated. She therefore conceded that, in terms of its commencement provision, the agreement did not apply to her circumstances.
Notice of termination
66. The Applicant accepted that four weeks’ notice was required and confirmed that she was informed on 5 June 2025 of the impending termination. She received the written termination letter on 17 June 2025, providing more than four weeks’ notice until 31 July 2025, and accepted that the notice complied with the BCEA.

Respondent’s closing arguments
67. The Respondent submits that the termination was substantively and procedurally fair. Substantively, the Applicant was underqualified, lacking the required NQF Level 6 qualification, and the termination letter expressly cited her underqualification. The Respondent argues that a fixed-term contract does not override mandatory qualification requirements and that the September 2025 collective agreement did not apply retrospectively, as the Applicant’s employment ended on 31 July 2025.
68. Procedurally, the Applicant was informed of the impending termination on 5 June 2025 and received written notice on 17 June 2025, providing more than the required four weeks’ notice. The Respondent submits that the Applicant failed to establish any further procedure that was required but not followed. It further relies on evidence that the Applicant knew she was underqualified and had been informed that this was the reason for termination.
Applicant’s closing arguments:
69. The Applicant submits that the termination was substantively and procedurally unfair, principally because her fixed-term contract was allegedly terminated prematurely before December 2025. She disputes the Respondent’s reliance on a 31 March 2025 termination date, arguing that no supporting appointment letter was produced and that she was reappointed from 1 April to 31 July 2025.
70. She relies on the principles applicable to fixed-term contracts, arguing that the Respondent had no contractual right to terminate the contract early. She further submits that the later collective agreement supports the approach that underqualified employees should be allowed to complete their existing contracts, although she acknowledges that the agreement itself did not apply retrospectively.
71. The Applicant therefore seeks a finding of unfair dismissal and compensation equivalent to five months’ salary, covering August to December 2025.

Analysis
72. I intend to offer brief reasons in my analysis as per Section 138 (7) of the LRA as amended, which states, “Within 14 days of the conclusion of the arbitration proceedings – the commissioner must issue an arbitration award with brief reasons”.
73. The Applicant referred a dispute in relation to section 186 (1) (a) of the LRA, which provides as follows: “Dismissal” means that- (a) an employer has terminated a contract of employment with or without notice”.
74. In analysing the evidence presented, I have considered Item 7 of the Code of Good Practice: Dismissals in the LRA and the CCMA Guidelines on Misconduct Arbitrations.
75. Section 192(1) of the LRA determines that in any proceedings concerning a dismissal, the employee must establish the existence of the dismissal on a balance of probabilities. Only once the existence of dismissal is established (section 192(2)), the Respondent must prove that the dismissal is procedurally and substantively fair. The standard of proof is the balance of probabilities.
76. A ‘balance of probabilities’ involves the weighing up of the respective versions of the parties to determine which is the more probable (See, among other things, Avril Elizabeth Home v CCMA and Others (2006) 27 ILJ 1644 (LC); Network Field Marketing (PTY) Ltd v Mngezana N.O. and others (2011) 32 ILJ 1705 (LC).
77. The Supreme Court of Appeal formulated the concept of a ‘balance of probabilities’ in Ocean Accident and Guarantee Corporation Limited v Koch 1963(4) SA 147 (A)) to mean the following: “It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say, ‘we think it more probable than not, the burden is discharged, but if the probabilities are equal, it is not.” (my emphasis)
78. Courts are explicitly advised to avoid focusing too narrowly on individual pieces of evidence and considering each in isolation. Instead, commissioners should evaluate the entire body of evidence and assess it on a balance of probabilities. The inference must be derived through a careful examination of the connection between the facts and their relation to the offence alleged to have been committed by the Employee (Komape v Spoornet (Pty) Ltd and others [2008] ZALC 72).
79. The parties agreed that the Applicant was dismissed. The onus, therefore, shifts to the Respondent to prove on a balance of probabilities that the dismissal was procedurally and substantively fair.
80. The parties also, through leading of evidence, agreed that the Collective Agreement of 2025 referred to was not applicable to the Applicant’s case. I will therefore not deal with it in this award.
81. The principal issues for determination are whether the Applicant was unfairly dismissed and, in particular:
81.1 Whether the Applicant was employed on a fixed-term contract extending beyond 31 July 2025;
81.2 Whether the Respondent was entitled to terminate that employment with effect from 31 July 2025 because the Applicant did not possess the prescribed qualification;
81.3 Whether the Respondent followed a fair procedure in effecting the termination; and
81.4 Whether the Applicant is entitled to compensation for the period August to December 2025.

Whether the Applicant was employed on a fixed-term contract extending beyond 31 July 2025
82. The evidence establishes a consistent annual practice in terms of which the Applicant completed assumption-of-duty documentation at the commencement of each school year, including in 2022, 2023 and 2024. The Applicant herself confirmed that this was the established practice and that she would thereafter perform her duties for the relevant school year. This repeated annual appointment is consistent with a series of separate temporary appointments rather than a single indefinite or permanent contract of employment.
83. Although an assumption-of-duty form confirms that an educator has commenced duty, it does not, on the evidence before me, determine the full duration of the contractual appointment. The forms relied upon record the commencement of duty but do not contain an end date. The evidence was that the appointment letter ordinarily records both the commencement and termination dates. In Phera v ELRC and Others (JA 81/10) [2012] ZALAC 18, the Labour Appeal Court held that an assumption of duties, without authorisation or written permission from the employer, does not in itself establish an employment relationship. The authority accordingly underscores the importance of establishing the employer’s appointment and the terms upon which the employee was authorised to render services.
84. In the present matter, neither party was able to produce the appointment letters for every year of the Applicant’s employment. This is significant because the appointment letters, unlike the assumption-of-duty forms, contained the contractual period, including the commencement and termination dates. Nevertheless, the absence of all the appointment letters does not necessarily mean that the Applicant was not appointed on fixed-term contracts. In City of Tshwane Metropolitan Municipality v SALGBC and Others (JR 1676/2009) [2011] ZALCJHB 163, the Labour Court endorsed the principle that an employment relationship may arise once the decision to appoint is communicated, whether orally or otherwise. The absence of a formal written contract is therefore not necessarily decisive in determining whether an employment relationship existed or its terms.
85. The personnel file contains at least one appointment letter expressly recording that the Applicant was appointed for a defined annual period. More importantly, the Applicant’s own evidence was that she completed an assumption-of-duty form each year and thereafter worked for the duration of that particular school year. Her evidence therefore supports a recurring annual appointment process, rather than a single appointment of indefinite duration.
86. The Respondent did not successfully rebut this evidence. Ms Molefi testified that the Applicant’s appointment was terminated on the system and that the relevant start and end dates would ordinarily have been captured from the personnel records. However, no documentary evidence was produced to substantiate the Respondent’s contention regarding the precise period of the Applicant’s employment from January 2024 to March 2025. The individual who had previously dealt with the Applicant’s personnel file had since retired and was consequently unavailable to testify.
87. On a consideration of the evidence as a whole, and applying the balance of probabilities, I find that the Applicant’s employment was characterised by successive annual temporary appointments. The annual completion of assumption-of-duty documentation, the Applicant’s own evidence concerning the yearly appointment practice, and the available appointment documentation support the conclusion that she was appointed on a year-to-year basis.
The assumption of duty signed in April 2025
88. The signing of the assumption of duty in April 2025 has no material impact on whether the Applicant was only appointed from that date to the end of July or whether she was appointed for the full year from January 2025.
89. This assumption of duty came about as a result of a salary query from the Applicant. The parties agreed that the Applicant rendered services from January 2025 and was paid her full salary until the date of termination, being 31 July 2025. The evidence of both the school principal and Ms Molefi confirmed that this assumption of duty was signed to enable the Respondent to pay the Applicant.
90. The Applicant accepted that she was ultimately terminated with effect from 31 July 2025. She further accepted that she was informed on 5 June 2025 that her employment would be terminated and that she received written notification on 17 June 2025.

Whether the Respondent was entitled to terminate that employment with effect from 31 July 2025 because the Applicant did not possess the prescribed qualification;

91. The LAC established the following principle in Buthelezi v Municipal Demarcation Board [2004] ZALAC 20: a party to a fixed-term contract generally has no right to terminate the contract before its expiry unless the contract permits such termination or there has been a material breach or repudiation.
92. A genuine fixed-term contract binds the parties for the agreed period, and an employer cannot ordinarily rely merely on notice to prematurely terminate such a contract where no contractual right to do so exists. The principle was reaffirmed in Magopeni v Acacia Mining SA (Pty) Ltd and others [2020] ZAGPPHC 300.
93. It was common cause between the parties that the Applicant did not have the required qualification for the post that she occupied. I had to consider whether the Applicant’s lack of the prescribed teaching qualification constituted a substantive and objectively justifiable reason for early termination of her employment.
94. The issue was not one of the Respondent merely preferring another candidate or exercising an unfettered discretion as to whom it wished to employ. The Applicant was appointed to perform the duties attached to a particular educator post, and the appointment to such a post is regulated by the Employment of Educators Act 76 of 1998, the applicable teacher qualification framework, the Personnel Administrative Measures and relevant collective agreements.
95. Section 6A(2) of the Employment of Educators Act expressly requires the employer, in making an appointment, to ensure that the applicant matches the requirements of the post and has the prescribed qualifications. The statutory scheme therefore recognises that possession of the prescribed qualification is an integral component of eligibility for appointment to an educator post.
96. Accordingly, the Applicant’s qualification status was not merely a matter of preference or internal policy. It concerned her compliance with the prescribed requirements applicable to the post that she occupied.
97. The Respondent’s evidence is that early in 2025 it discovered that the Applicant did not possess the qualification prescribed for the post. The Respondent could not reasonably be expected to disregard a mandatory qualification requirement applicable to an educator post merely because the Applicant had previously been employed in that capacity.
98. The fact that the Applicant had previously been appointed on temporary contracts does not confer upon her an entitlement to continue occupying a post for which she did not satisfy the prescribed requirements. Previous appointments could not create a substantive right to continued employment contrary to the statutory and regulatory framework governing educator appointments.
99. The Applicant’s failure to satisfy the prescribed qualification requirement therefore constituted a legitimate and objectively justifiable reason for the termination of her employment. The Respondent’s decision was consequently directed at the Applicant’s eligibility and suitability to occupy the particular educator post, rather than being arbitrary, capricious or based on personal considerations.
100. The fact that the Applicant’s appointment was for a fixed term does not render her immune from termination for a substantively fair reason arising during the currency of the employment relationship. A fixed-term contract establishes the duration of the employment relationship, but it does not deprive the employer of the right, where legally justified, as in this case, to terminate the employment for a fair reason recognised by labour legislation.
101. I believe that my conclusion is supported by various other ELRC arbitration awards that stated that meeting the minimum requirements of a post is compulsory for appointment in a post, whether it is a permanent position or a fixed-term contract (see 29 August 2025 North West ELRC award, ELRC1356-24/25NW)

Whether the Respondent followed a fair procedure in effecting the termination?
102. A finding that the Respondent had a fair substantive reason for terminating the Applicant’s employment before the expiry of the fixed-term contract does not, however, conclude the enquiry into fairness. Substantive fairness and procedural fairness constitute separate components of a fair dismissal. It is therefore necessary to consider independently whether the Respondent followed a fair procedure before terminating the Applicant’s employment.
103. The judgment in Dingezweni v MEC, Department of Education, Eastern Cape Province and Another (5536/2016) [2022] ZAECBH C 26 (27 September 2022) is instructive in this regard. Ms Dingezweni was employed as an educator on a fixed-term contract in terms of section 7(2)(b) of the Employment of Educators Act 76 of 1998. The Court recognised that, notwithstanding the fixed-term nature of the appointment, the employment relationship remained subject to the statutory framework governing the employment of educators and, in particular, the Labour Relations Act.
104. Dingezweni is significant because a fixed-term contract does not, in itself, entitle the Department to terminate the employment relationship prematurely without complying with applicable statutory requirements. Where the Department elects to terminate an existing fixed-term contract before its agreed expiry date, the employee remains entitled to the protection afforded by the LRA, including the right to a fair procedure. The fixed-term nature of the contract therefore does not dispense with the requirement of procedural fairness.
105. The fact that the Respondent afforded the Applicant the applicable period of notice does not, in itself, render the termination procedurally fair. Notice and procedural fairness serve different purposes. Notice regulates the period within which an employment relationship terminates; it does not afford an employee a right to be heard before the employer decides to terminate.
106. Section 188(1)(b) of the LRA requires an employer to establish that a dismissal was effected in accordance with a fair procedure. This requirement is distinct from any contractual or statutory obligation to provide notice of termination. Compliance with a notice period therefore cannot, without more, satisfy the separate requirement of procedural fairness.
107. Section 37 of the Basic Conditions of Employment Act regulates minimum notice periods for contracts of employment terminable on notice. It does not displace the employee’s right to challenge the fairness of a dismissal under the LRA. Significantly, section 37(6)(a) expressly preserves the employee’s right to challenge the lawfulness or fairness of the dismissal under the LRA.
108. The relevant enquiry is accordingly not whether the Respondent gave the Applicant the prescribed notice, but whether, before the decision to terminate her employment was finally taken, the Applicant was afforded a fair opportunity to address the reason upon which the Respondent intended to rely for the termination.
109. The Applicant should, at the very least, have been afforded an opportunity to place before the Respondent any facts or circumstances which she considered relevant to the decision. This would include, where applicable, an explanation regarding her qualification status, the nature and status of any studies she was undertaking, the anticipated completion of such studies, or any other circumstances which might have been relevant to the Respondent’s decision. The Respondent was then required to consider those representations genuinely before reaching its final decision.
110. This did not necessarily require a formal disciplinary enquiry. The Code of Good Practice: Dismissal recognises that an investigation preceding dismissal need not take the form of a formal hearing. Procedural fairness required that the Applicant be informed of the case against her and afforded a meaningful opportunity to make representations before the Respondent finally decided to terminate her employment.
111. The evidence, however, establishes that the Applicant was not afforded such an opportunity. The Respondent terminated her contract on the stated ground that she was underqualified, without first giving her an opportunity to respond. Consequently, the Respondent did not have the benefit of the Applicant’s explanation before making the decision to terminate her employment.
112. Of particular significance is the fact that the Applicant was studying towards the relevant qualification. The Respondent was unaware of this and therefore did not consider it when it made the decision to terminate. It cannot be said that the Applicant was afforded a meaningful opportunity to be heard where a potentially relevant circumstance concerning her qualification status was never put before the decision-maker.
113. The audi alteram partem principle is fundamental to procedural fairness. Its purpose is not to prescribe a particular form of hearing, but to ensure that an employee has a genuine opportunity to place her case before the employer before an adverse decision affecting her employment is made. That opportunity was absent in the present matter.
114. I accordingly find that, notwithstanding the conclusion that the Respondent had a substantively fair reason for terminating the Applicant’s employment, the procedure followed by the Respondent was deficient. The Applicant was not afforded a meaningful opportunity to respond to the very ground upon which her employment was terminated, nor was her explanation that she was studying towards the requisite qualification considered before the decision was taken. The termination was therefore procedurally unfair.

Whether the Applicant is entitled to compensation for the period August to December 2025.
115. Having found that the Respondent had a substantively fair reason for terminating the Applicant’s employment, but failed to follow a fair procedure, the dismissal is unfair only on procedural grounds.
116. Section 193(2)(d) of the LRA provides that an arbitrator is not required to order reinstatement or re-employment where a dismissal is unfair only because the employer did not follow a fair procedure. Reinstatement or re-employment therefore does not arise in the circumstances of this matter.
117. The remaining issue is whether an award of compensation would be just and equitable under section 194(1) of the LRA, and not simply by reference to the unexpired portion of the fixed-term contract.
118. The fact that, according to the Applicant, five months remained on her fixed-term contract can certainly be a relevant circumstance, but it does not establish an automatic entitlement to five months’ remuneration.
119. In determining this issue, regard must be had to the nature and extent of the procedural defect and, importantly, to the fact that the Respondent nevertheless had a substantively fair reason for terminating the Applicant’s employment. The procedural defect did not render the reason for termination invalid or unjustified. Had the Respondent afforded the Applicant an opportunity to make representations before the decision was taken, the Respondent would still have been entitled to consider and, if appropriate, act upon the fact that the Applicant did not meet the prescribed qualification requirements of the post.

120. In determining an appropriate remedy, it is further relevant that the Applicant’s employment was subject to a fixed-term appointment and that the substantive basis for the termination was her failure to meet the prescribed qualification requirements applicable to the post. Compensation is not punitive and is not automatically payable merely because procedural unfairness has been established. It is a discretionary remedy which must be just and equitable in the circumstances.
121. I am satisfied that, notwithstanding the substantive fairness of the termination, the Applicant suffered prejudice by not being afforded an opportunity to be heard before the decision was taken, especially in light of the fact that she was furthering her studies. I accordingly consider an award of one month’s remuneration in the amount of RR26 000-00 (TWENTY-SIX THOUSAND RAND) to be just and equitable compensation for the procedural unfairness.

Award
122. I find that the decision of the Respondent, the Department of Education, North West, to terminate the fixed-term contract of the Applicant, T Semetse, prematurely constitutes a procedurally unfair, but substantively fair dismissal.
123. The Respondent is ordered to pay the Applicant one month’s salary as compensation, in the amount of R26 000-00 (TWENTY-SIX THOUSAND RAND) on/before 30 September 2026.

Signature:

Panelist: ANNELIE BEVAN