07 May 2025 -ELRC1188-24/25LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Case No. ELRC1188-24/25LP

In the matter between

TETO NOZUKO SHAUN Applicant

and

DEPARTMENT OF EDUCATION-LIMPOPO Respondent

ARBITRATION AWARD

Details of Hearing and Representation

1. This award is rendered in accordance with the provisions of section 138 (7) of the Labour Relations Act, 66 of 1995 as amended (the Act). The hearings took place virtually on 31 March and 11 April 2025 at 9:00AM. The applicant, Teto Nozuko Shaun wasrepresented by Setati N.S from South African Democratic Teachers Union (SADTU), while the respondent, Department of Education-Limpopo Province was represented by Rasebotsa N, its official. The proceedings were digitally voice recorded and conducted in English.

Issues to be decided

2. The dispute was about the applicant’s alleged non- renewal of fixed term contract. I must decide whether the applicant was dismissed or not. I must also decide whether the dismissal of the applicant was both procedurally and substantively fair or not. If the dismissal is unfair, I must determine an appropriate relief.

Background to the Dispute

3. The applicant was appointed at Lekwa Secondary School (the school) in a substantive post on 08 April 2024 on a fixed term contract ending 31 December 2024. The post was a CS1 post, and she was earning a salary of R29 586.55 per month. The applicant’s qualifications were to be evaluated by the Department of Higher Education and Training as per the contract of employment (contract). The evaluation certificate was issued, and the applicant was found to be professionally unqualified but academically qualified.

4. The application for the renewal of the applicant’s contract was recommended by the School Governing Body (SGB) of the school but disapproved by the respondent. The post is still vacant. The applicant does not have a professional teachers’ education/method.

5. The relief sought by the applicant is that her contract be renewed retrospectively.

Survey of the evidence and argument.

The applicant’s case

Two witnesses testified on behalf of the applicant. Nozuko Shaun Teto testified under oath and in English that:

6. She is currently unemployed. She was invited to come to the school to introduce music through creative arts, music dance, and virtual arts in class as well as practically. She was allocated creative arts grades 8 and 9. The school did not have music as a subject, but it was its plan to introduce music for the FET phase (grades 10-12).

7. She received a call a call from Manaka N.S (Human Resource) informing her that since she did not possess a qualification (postgraduate certificate in education) and her undergraduate is B.A (Music) Degree, her qualification would make her appointment temporary. She was aware of the reason for the convention of her post to temporary appointment. She was advised that her qualification would be re-evaluated by South African Qualification Authority (SAQA). She was again advised to register for a Postgraduate Diploma in Education (PGDE).

8. She expected the contract to be renewed because of the advice to register for PGDE and the principal informed her in December 2024 that there would be motivation to the Circuit Manager to renew her contract. Her understanding was that there were qualifications which allowed individuals to teach specific subjects. Music or Creative Arts are some of the subjects on which qualifications to teach them were relaxed. She was professionally unqualified and the only subject to teach was music.

9. During the cross-examination, she testified that the nature of her appointment was temporary. The contract ended on 31 December 2024. The result of the re-evaluation of her qualifications was that she was professionally unqualified. For general stream, you need to have a degree and postgraduate certificate. Her SACE certificate was a Special Category to teach music and creative arts. She would like the respondent to consider PAM provisions and relax the qualifications (page 15 of Bundle A, paragraph B.3.2.1.3).

The second witness of the applicant was Msibi James Msibi. Msibi James Msibi testified under oath and in English that:

10. He knew the applicant as his former colleague at the school. They managed to request the extension of the applicant’s temporary post, and the district declined. The reason for the request for extension of the applicant’s post was that the school still needed her skills of teaching music in the school. They intend to introduce music as a subject at FET. They recommended the applicant because she had scary skill, music. The applicant was accommodated on page 15 of Bundle A because she was allocated dance studies, dramatic arts, music and virtual arts. The applicant was also allocated creative arts and English. He advised the applicant to enroll for PGDE. According to the qualifications of the applicant, she did not qualify to teach English.

11. During the cross-examination, he testified that the applicant did not have teaching qualifications. She was not a qualified teacher. The applicant was on temporary contract ending 31 December 2024. The reason for not extending the applicant’s contract was that she was not professionally qualified. The applicant did not have a B.ED Degree and she was in the process of acquiring a Postgraduate Certificate in Education (PGCE). The applicant knew that her contract would end on 31 December 2024.

The respondent’s case.

One witness testified for the respondent. Sebyetseba Maria Olivia testified under oath and in English that:

12. She was the acting deputy director: corporate services at Mogalakwena District of the respondent. She was taking care of corporate including human resources provisioning which deal with appointments. The nature of appointment of the applicant was temporary in a substantive/substitute/ad hoc post with effect from 08 April 2024 to 31 December 2024 (page 44 of Bundle R). There was no expectation created. The applicant’s qualifications do not have mainstream subjects taught in their schools. The applicant’s qualifications were only to teach music, and music was not a subject offered in their district. The SACE certificate of the applicant was for a special school which teaches special subjects. The applicant must have major subjects with three years’ qualification.

13. During the cross- examination, she testified that she had 34 years of experience dealing with appointments. She was guided by the Employment of Educators Act, Collective Agreement 2 of 2020 and PAM. The school needed English teacher, and the applicant does not teach it. They appointed the applicant temporarily and told her that they were going to take her qualifications for evaluation. Upon receiving the evaluation results she (applicant) would then be appointed permanently. After evaluation it was indicated that the applicant could only teach music. Music was not offered as a subject at the school.

Analysis of the evidence and arguments

14. In terms of Section 192 (1) of the Labour Relations Act, 66 of 1995 as amended, the onus is on the employee to establish the existence of a dismissal. Once that has been established, sub-section 2 provides that the employer must prove the fairness of the dismissal. The applicant is challenging the non-renewal of her fixed term contract.

15 Section 186 (1) (b) (i) of the Labour Relations Act, 66 of 1995 as amended, states that “an employee employed in terms of a fixed term contract of employment reasonable expected the employer- (i) to renew the fixed term contract of employment on the same or similar terms, but employer offered to renew it on less favourable terms, or did not renew it”. The applicant’s main testimony was that she expected the respondent to renew her contract because the principal advised her to register for PGDE, there would be motivation for the extension of her contract and that the PAM provides for relaxation of qualifications in teaching music or creative arts. The respondent disputed that evidence by testifying that the applicant was appointed temporarily from 08 April to 31 December 2024. The respondent took the qualifications of the applicant for evaluation and the results indicated that she (applicant) was professionally unqualified, but academically qualified, hence her contract was not renewed or extended. The applicant was not dismissed by the respondent, her contract just came to an end, 31 December 2024. The applicant knew that her contract was going to end on 31 December 2024. No reasonable expectation was created by the respondent because the applicant knew in June 2024 that she was professionally unqualified. The termination of the applicant’s contract did not amount to a dismissal as envisaged in section 186(1)(b) of the Act.

16. In view of the above, I find that the applicant has on the balance of probabilities failed to prove the existence of a dismissal.

Award

17 I find that the applicant, Teto Nozuko Shaun, was not dismissed.

18 I dismiss the applicant’s dispute.