10 February 2026 – ELRC401-25/26GP

IN THE ELRC ARBITRATION
BETWEEN: ELRC401-25/26GP

JOHANNES MSETEKA “the Applicant”
and

DEPARTMENT OF HIGHER EDUCATION AND TRAINING “the Respondent”

ARBITRATION AWARD

Case Number: ELRC401-25/26GP

Date of award: 09 February 2026
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 1st of December 2025 and proceeded as such. Both parties were present, the Applicant Mr. Johannes Mseteka was represented by Mr. Prince Zulu the SADTU Official and the Respondent was represented by Mr. Thokozani Nkambule. The matter was then rescheduled for the 13th of January 2026 for a face-to-face hearing to mitigate against connectivity issues.

1.2. The arbitration was finally concluded on the 3rd of April 2025

1.3. Before the start of the arbitration process, the Respondent submitted their bundle of documents which was later marked Exhibit “R”, the Applicant also later submitted their bundle of documents which was later marked Exhibit “A”. Further documents were submitted and marked Exhibits “C”, “D”, “E”, accordingly.

1.4. The parties agreed to file their closing arguments by close of business on the 21st of January 2026.

1.5. The submissions of both parties were carefully considered but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.

The issues in dispute:
2.1. The Applicant Mr. Johannes K. Mseteka alleged that he was dismissed unfairly.
2.2. That the Respondent failed to hold a disciplinary hearing, he was given three days’ notice period after 5 years of service.
2.3. No reasons were advanced for his dismissal.
2.4. Determine whether the dismissal of the Applicant was fair or not and if I find it to be unfair the Applicant is seeking Reinstatement.
Issue to be decided
3.1. The primary issue is whether the termination of the Applicant’s contract constituted a dismissal as contemplated in section 186 of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, whether the Respondent was obliged to provide notice or payment in lieu of notice.
BACKGROUND
4.1. The Applicant Mr. Johannes Khutje Mseteka was employed by the Respondent from July 2020 as a Lecturer.
4.2. In 2016 the Applicant was employed as Principal in Mpumalanga. He was dismissed for misconduct following charges of assault on the learner. Five years had elapsed after the alleged misconduct, and he was rehabilitated. He applied for the permanent post and with his documents he submitted a letter from the Mpumalanga Department of Education stating that he had been rehabilitated. He was shortlisted, went for interviews and was successful. He signed an appointment letter in December of 2024.
4.3. In May 2025 he was issued with a letter of termination giving him three (3) days’ notice. His termination was effective on the 31st of May 2025. There were no reasons advanced for his termination, he was not given an opportunity to defend himself either.
4.4. In August 2025 he was informed that the clearance was declined by the Director General.
4.5. Dissatisfied with the process the Applicant referred a dispute to the ELRC for unfair dismissal.
4.6. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 191(2)(a) of the Labor Relations Act 66 of 1995 (LRA.)
4.7. Given the above, the Commissioner is required to determine whether the first Respondent was unfair in terminating the employment of the Applicant. if so the Applicant is seeking reinstatement retrospectively.
RESPONDENT’S EVIDENCE AND ARGUMENTS
Mr. SABELO PLAATJIE
(ACTING DEPUTY PRINCIPAL CORPORATE SERVICES CENTRAL JHB TVET COLLEGE)

5.1. The witness testified under oath and stated that part of his responsibilities are:
(a) To oversee HR Department
(b) Recruitment, Performance Management,
(c) Training & Development
(d) Industrial Relations, Labour Relations
(e) IT
(f) Facilities and Infrastructure
5.2. He testified and confirmed that the Applicant Mr. Mseteka was offered employment and the letter on pages 13 – 19 is the offer of employment.
5.3. He testified that the College had advertised the Lecturer posts in 2023 to appoint the Lecturers to PERSAL. The process could not be concluded because there wasn’t sufficient money to make the appointments, the process was put on hold. Around August 2024 the College was advised that they could finalise the recruitment process, there was money. At the time when the process was put on hold, most of the work had been done, the recruitment Committee had made its recommendations.
5.4. In December 2024 offers were made to successful candidates. Letters of offer were signed by the Principal and submissions were made to the Department of Higher Education and Training to effect the appointments.
5.5. He testified that although the Applicant worked at the College, the College is a component of the Department of Higher Education and Training, the final decisions are taken by the Director General from the Department.
5.6. The documents were sent with the hope that when they opened in January 2025, the Applicant would be employed with a PERSAL Number. He stated that the work of capturing the appointment documents is done by the College then the physical documents sent to the Department.
5.7. He testified that the Applicant’s appointment did not go to the final stages. It was blocked in the system; the system rejected his appointment.
5.8. He referred to pages 20 to 25 of the bundle and stated that this was the application sent by the College officials to the Director General requesting him to request clearance from the National Treasury. He testified that this is done through the Executive Authority of the Department. He stated that the submission was for the HOD to approve the request to remove the blockage from PERSAL. The Director General must approve.
5.9. The Director general is responsible for any misconduct that takes place at the department. It is his responsibility to ensure that all the Departments are compliant as the Accounting Officer, he is ultimately responsible for the Department.
5.10. The decision was not approved by the Director General, and it is his prerogative to approve or not to approve, no one can overrule the Director General.
5.11. The reasons for non-approval were lack of evidence of rehabilitation as stated by the Director General, he said he has not received anything to confirm that the Applicant has been rehabilitated from the incident. If an employee commits misconduct, the Director general accounts for such.
5.12. The Applicant was on a fixed term contract which was coming to an end in January 2025. The Applicant was employed at Langlaagte Campus which belongs to Central Johannesburg TVET College. The PERSAL structure is funded by the Department. The College approves only when there are additional functions which cannot be funded by the Department, meaning all temporal appointments are activated by the College. PERSAL structure is funded by the Department.
5.13. Under cross examination the witness reiterated that the Director General did not approach the Treasury because he was not convinced that the Applicant had been rehabilitated, nothing was submitted to confirm that he was rehabilitated.
5.14. He stated under cross examination that the temporal employment came to an end when the Applicant was given an offer of permanent employment, the permanent contract was rejected by the Director General.
5.15. He stated that it was the responsibility of the Applicant to provide proof of rehabilitation.
5.16. He stated that it is impossible to have two contracts at the same time.
5.17. When the Applicant was offered a permanent contract, the temporal contract came to an end.
5.18. He reiterated that the Applicant cannot be unblocked by the Mpumalanga Department of Education, only the Treasury has the power to unblock an employee, after a request done by the Director General having satisfied himself that the employee has been rehabilitated.

APPLICANT’S EVIDENCE
Mr. JOHANNES KHUTJE MSETEKA

6.1. The Applicant Mr. Johannes Khutje Mseteka testified under oath and stated that he was employed by CJC from July 2020 up until the time when he received the letter of termination on the 27th of May 2025, the termination letter stated that he was terminated effectively on the 31st of May 2025.
6.2. He testified that he has worked for 5 years and if anything, he should have been given four weeks’ notice. Further no reasons were advanced for the termination of his contract.
6.3. He testified that the contract that he had ended in January 2025. The College wanted to appoint him on PERSAL System. He was given one month contract for February and March.
6.4. When he received a letter of termination, he did not have a contract, but he was working.
6.5. He testified that in 2023, he applied for a post which was advertised, he was shortlisted, went for an interview in May 2023 and he was recommended for the post. He was given an offer to sign on the 12th of December 2024 see pages 13 to 19 of the respondent’s bundle.
6.6. The contract was due to commence in February 2025, he never stopped working until the 31st of May 2025. He does not know which contract was being terminated and he believes that the respondent ought to have followed a process in terminating his contract.
6.7. He testified that his PERSAL was blocked by Mpumalanga Department of education in 2017. He applied for pardon which was granted in February 2023.
6.8. He made enquiries with Nkangala District in Mpumalanga, and he was informed that the Department that is hiring has to request clearance from Treasury. He phoned the treasury, and he was informed that his PERSAL has been unblocked. He sent the letter in February 2025 see page A3 to show that he had been unblocked
6.9. In August 2025, he was informed that his clearance was declined, however he has a letter from Mpumalanga which states that he had satisfied all the requirements.
6.10. He was sanctioned in 2017 and served his sanction until 2023 when he was unblocked, when he applied for the post in 2023 he attached the document to declare that he was sanctioned but he has been cleared.
6.11. The letter from the Director general was received in August 2025, and it puzzled him how the Director General came up with such because he is rehabilitated and cleared in 2023. He feels that the is now double jeopardy.
6.12. Under cross examination the Applicant Mr. Mseteka stated that he had two contracts and they ran concurrently. When terminated by College Council, you cannot be employed by department of Higher education and Training.
6.13. The respondent submitted that the request for unblocking was made because the Applicant was blocked, if the Applicant was not blocked there would be no need to make the application.
6.14. He conceded that according to paragraph 3 page 20 the Head of Department (Director General) should consent for reappointment of a blocked person.
6.15. The Applicant Mr. Mseteka reiterated that the fact that he was working and has not had any incident is evidence that he is rehabilitated.
6.16. He conceded that PERSAL is controlled by National Treasury.
6.17. The Respondent submitted that the letter that the Applicant is relying on is deceiving because the author of the letter does not have the powers to unblock, the power to unblock lies with the National Treasury.
6.18. The Respondent submitted further that the Accounting Officer could not take the risk of employing him because he did not have evidence that the Applicant has been rehabilitated. He did not make the application with Treasury because he was not convinced that the Applicant has been rehabilitated.
6.19. The Applicant, Mr. Mseteka reiterated that HR was supposed to send proof to the Director General that he has been teaching.

ANALYSIS OF EVIDENCE
7.1. The Applicant has alleged unfair dismissal, substantively and Procedurally
7.2. It is apt to refer to section 188 of the LRA. It provides that:
“Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with fair procedure must take into account any relevant code of good practice issued in terms of this Act.
7.3. Schedule 8 of the LRA embodies the code in relation to dismissal.
7.4. Fairness has two legs, the Substantive, and the Procedural fairness.

SUBSTANTIVE FAIRNESS
7.5. The Applicant testified that the Respondent failed to state the reasons for his dismissal in the letter of termination dated 21 May 20256.
7.6. The Applicant in his evidence conceded that he was on a fixed term contract which ended in January 2025, thereafter he was given monthly contracts until March 2025.
7.7. The Respondent testified that the when the Applicant was offered the permanent contract, the fixed term contract automatically came to an end. He testified that it is impossible to have two contracts running at the same time by the same Department.
7.8. The Applicant applied for a permanent post in 2023, he was shortlisted, interviewed, and recommended for the post. Later on in December of 2024, he signed a letter of appointment. When capturing the Applicant’s details on to the system, it was discovered that he was blocked. A request was made to the Director General to apply for his clearance from the National Treasury. The Director General did not proceed to make to the Application with the National Treasury. The reasons stated by the Director General for his decline was that he is not satisfied that the Applicant is rehabilitated.
7.9. The Applicant testified that he submitted a letter from the Mpumalanga Education Department together with his Application indicating that he was rehabilitated and cleared for appointment.
7.10. The Respondent argued that the Mpumalanga Department of Education does not have the powers to clear the Applicant for appointment, only National Treasury has that power.
7.11. The Director General of the employing Department must be satisfied that the individual has been rehabilitated, then he makes the application to the National Treasury who then clears that individual educator’s PERSAL.
7.12. According to the Department of Public Service and Administration (DPSA) any public servant whose services have been terminated due to misconduct and dismissed may not be permitted to be re-appointed at any Government Department without the consent and approval of the responsible Head of Department (The Director General)
7.13. In the Applicant’s case, the Director General did not receive anything which proves the Applicant’s rehabilitation and therefore he declined to submit the Application to the National Treasury. The Director General has the prerogative to approve or not to approve.
7.14. The Applicant further submitted that the College Human Resources was supposed to advise the Director General that he has been in the employ since July 2020 and that he has not had any incidents of violence towards the students.
7.15. A submission was made on page 21 of the Respondent’s bundle under Background stating what he did in terms of studies since his termination and that he has now been recommended for a permanent post and is seeking clearance in order to finalise his appointment.
7.16. It is my finding that, in terms of the Department of Services Administration (DPSA) prescripts, the Director General is the only official vested with the authority to grant consent and approval in this regard.
7.17. It is further my finding that the Applicant was engaged on a month-to-month contractual basis, pending the finalization of his application for approval to be placed on the hard-core PERSAL system. The termination letter issued to the Applicant on the 27th of May 2025 was intended to terminate the Applicant’s temporary employment contract.
7.18. University of Pretoria v CCMA and Others (2012) 32ILJ 183 (LAC) the Labour Appeal Court confirmed that the expiry non-renewal of a fixed term contract does not constitute a dismissal and no notice pay is due where the contract terminates by effluxion of time, absent a reasonable expectation of renewal.
7.19. The Applicant in his evidence testified that his contract came to an end in January 2025, then he signed monthly contracts until March 2025, at the time of his termination he did not have a signed contract. It is clear that the month-to-month contract was in place pending the finalization of the approval to be placed on hard-core PERSAL. The employer should be penalized for placing the Applicant on a month to month whilst attempting to get approval.
7.20. The general rule on fixed term contracts is that they end automatically on the expiry date and neither party is obliged to give notice unless the contract requires it.
7.21. It is important to note that the BCEA section 37 notice requirements apply to contracts terminable at the instance of a party may be terminated only on notice of not less than
(a) One week, if the employee has been employed for six months or less.
In this instance the Applicant was given 3 days’ notice of termination.

FINDING
8.1. Having considered all the evidence presented, including the documents submitted as evidence, I am satisfied that the Applicant was on a month-to-month contract pending the finalisation of his approval for placement on the hard-core PERSAL system. Each of the contracts expired at the end of the respective month.
8.2. Due to delays in PERSAL clearance and the Applicant being blocked on the system, the Respondent decided not to continue with further month to month contracts. The Applicant was issued with a termination letter confirming the cessation of his temporary employment. The temporary nature of the employment was known to the Applicant, and the continuation of employment was expressly dependent on administrative approval processes beyond the Respondent’s control.
8.3. The Respondent’s decision not to continue with further temporary contracts was precipitated by the Applicant being blocked on PERSAL and delays in obtaining clearance. The termination letter issued to the Applicant merely confirmed the cessation of temporary employment and did not create a dismissal where non existed.
8.4. The Applicant did not lead evidence establishing a reasonable expectation that his temporary contract would be renewed.
8.5. Now I turn to the issue of Notice, If I were to accept for argument’s sake that the Respondent was required to provide five days’ notice, the provision of three days’ notice would not render the termination substantively or procedurally unfair. At most it would give rise to a limited contractual entitlement to payment in lieu of outstanding two days’ notice which is a contractual claim and not an unfair dismissal remedy under the LRA.
8.6. I therefore find that the provision of three days’ notice did not constitute unfair dismissal, accordingly, the Applicant’s claim based on insufficient notice is dismissed.
AWARD

9.1. In the premise I make the following order

9.2. The Applicant’s claim of unfair dismissal is hereby dismissed.

9.3. No order is made as to costs.

GCINA MAFANI