11 February 2026 – ELRC937-25/26GP

Case Number: ELRC937-25/26GP
Commissioner: PAUL PHUNDU
Date of Award: 11 FEBRUARY 2026

In the ARBITRATION between

Mduduzi Mkhize
(Union/Applicant)

And

Department of Education-Gauteng
(Respondent)

Union/Applicant’s representative: In person
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Mr Justice Bongani Mfundisi
Respondent’s address:

Telephone:
Telefax:

Details of hearing and representation

[1] This is the award in the arbitration between Mduduzi Mkhize (the Applicant) and the Department of Education-Gauteng (the Respondent). The award is issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA.

[2] The arbitration hearing was conducted on virtually on 30 January 2026.

[3] The applicant attended the arbitration hearing and he represented himself. The respondent was represented by, Mr Bongani Mfundisi, its Employee Relations Official.
[4] The proceedings were conducted in English and were digitally recorded.

Issue to be decided

[5] I am required to determine whether the termination of the fixed term contract constituted a dismissal or not. If dismissal is established, I must determine the fairness thereof and in the event of unfairness, determine the appropriate remedy.

Background to the issue

[6] The applicant was in the employ of the Respondent on a two and a half months fixed term contract effective from 13 October 2025 until 31 December 2025.
[7] The applicant was employed as an Educator at Hlabelela Primary School.
[8] The applicant is claiming that he was unfairly dismissed by the respondent.
[9] The applicant referred a dispute to the Council. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the applicant prays for renewal of his fixed term contract of employment.

       Preliminary Point

[10] The respondent raised a preliminary point and alleged that the applicant was not dismissed. The respondent alleged that the applicant’s appointment was revoked, therefore, there is no dismissal dispute before the Council.
[11] The preliminary point is dismissed.

The respondent’s case

[12] Mr. Justice Bongani Mfundisi testified, under oath, that he is employed by the respondent as Employee Relations Official. He stated that the applicant was not dismissed.
[13] Mr Mfundisi stated that the applicant’s salary was R29, 331.00 per month.
[14] According to Mr Mfundisi, the applicant’s three months fixed term contract of employment was revoked on 5 November 2025. Despite this, the applicant was paid a full salary for October and November 2025.
[15] The applicant’s last day at work was on 5 November 2025.
[16] The reason for revoking the applicant’s fixed term contract of employment was because the Principal of the Primary School did not have powers to appoint and this was over and above the fact that the applicant’s name was not amongst the three recommended candidates for the temporary position.
[17] According to Mr Mfundisi, this information came to light just before the 5 November 2025. Hence the revocation of the applicant’s appointment. According to Mr Mfundisi, the revoking of the applicant’s appointment is not a dismissal.
[18] The Commissioner must dismiss the application.
[19] Under cross-examination Mr Mfundisi confirmed that the School Governing Body had the power to recommend and the respondent has the power to appoint. The Principal has no power to appoint and he erred in appointing the applicant into the fixed term position of employment.

The applicant’s case

[20] Mr Mduduzi Mkhize testified, under oath, that he was employed temporarily by the Principal as PL1 Educator. He started on 13 October 2025 and he was dismissed on 5 November 2025.
[21] According to the applicant, his termination was before the expiry of his fixed term contract of employment.
[22] Mr Mkhize further indicated that he was informed by the Principal that he was on probation.
[23] According to him, the Principal later informed him that his services were no longer required.

[24] Under cross-examination the applicant confirmed that the Principal did inform him that he had no power to appoint him as he was not amongst the recommended candidates for the position.
[25] The applicant conceded that he was given a three months fixed term contract of employment.
[26] The applicant conceded that he was paid a full salary in November 2025, despite him having worked for only a week.
[27] The applicant maintained that he was unfairly dismissed by the respondent.

Analysis of evidence and arguments

[28] The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in arguments all of which is not reflected in this award but had nevertheless been taken into account.
[29] The dispute in essence amounts to whether, on the facts of the matter, the applicant has discharged the onus of proving that the termination of his contract of employment falls within the parameters of “dismissal” as defined in section 186 of the Act.
[30] “In terms of Section 186(1) (a) (b) (i)(ii) of the LRA, dismissal means that an employer has terminated employment with or without notice; an employee employed in terms of a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.”
[31] In terms of Section 188 of the LRA, “a dismissal that is not automatically unfair, is unfair if the employer fails to prove –

(a) That the reason for dismissal is a fair reason 
    (i) related to the employee’s conduct or capacity; or
    (ii) based on the employer’s operational requirement; and

(b) That the dismissal was effected in accordance with a fair procedure.”

[32] The new Code of Good Practice: Dismissal (Part A –D) seeks to balance competing interests by ensuring the protection of employees from unfair conduct while also recognising that employers are entitled to good work ethic from employees. Dismissal is typically reserved for situations where the continuation of the employment relationship has become intolerable.

[33] It is common cause that the parties entered into a written fixed term contract. The duration of the contract was three months. The applicant is challenging the decision of the respondent to terminate his fixed term contract of employment prematurely.
[34] The applicant confirmed in writing by acknowledging and signing the fixed term contract that he understood the contract to be temporary employment which would come to an end on 31 December 2025. In essence, the applicant knew from the 13 October 2025 the start and the end date of his temporary employment and he accepted that his employment was temporary in nature.
[35] I reject the respondent’s testimony that the revoking of the applicant’s appointment is not a dismissal under the circumstances of this matter.
[36] I am persuaded and agree with the applicant that he was dismissed from his temporary position before the expiry date as agreed between the parties. In my view, the revocation of his employment resulted in him not fulfilling his duties. His fixed term contract of employment was terminated prematurely. The reason for termination was not caused by the applicant and the blame for his appointment cannot be apportioned to him. He applied for the position. He was number 4 on the list and he was given a fixed term contract of employment which he duly accepted.
[37] There is no documentary evidence before me proving that the applicant was on probation.
[38] It is my finding that the applicant’s fixed term contract of employment was terminated without a notice. In my view, the applicant had an expectation that his fixed term contract of employment will expire on 31 December 2025.
[39] In Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) the court stated as follows in paragraphs 78 & 79:
(78) In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee’s challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long service record. This is not an exhaustive list.

(79) To sum up. ’In terms of the LRA a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances’’.

[40] It is my finding that the applicant’s dismissal was unfair.

Remedy
[41] The remedies that may be afforded to the applicant are set out in section 193 of the LRA.
[42] The Applicant’s remuneration was R29, 331.00 per month at the time of the dismissal.
[43] In these circumstances, I find that compensation in the amount of R29, 331.00 is a just and equitable remedy under the circumstances.
[44] The reason for award of this amount of compensation is because of the substantive unfairness of dismissal and that:
[45] The Applicant has suffered a financial loss of only one month salary for the month of December 2025 as his fixed term contract was to expire on 31 December 2025 and he was paid the salary for November 2025.

Award
[46] I find that the dismissal of the Applicant is substantively unfair.
[47] I order the respondent (Department of Education-Gauteng) to pay the applicant, compensation in the amount of R29.331.00 (Twenty Nine Thousand Three Hundred and Thirty One Rand) being equivalent of one month’ salary.
[48] The above amount must be paid to the applicant on or before 15 March 2026.
[49] As provided for by section 143(2) of the LRA, any unpaid amount due in terms of this award will attract interest at the rate prescribed in terms of Section 2 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from the date on which it was due and payable.