12 June 2026 – ELRC560-25/26KZN

Case Number: ELRC560-25/26KZN
Panelists: Lungile Matshaka
Date of Award: 12 June 2026

In the arbitration between

MS NOMBULELO DLAMINI
(Applicant)

And

DEPARTMENT OF EDUCATION KWAZULU-NATAL PROVINCE
(Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

This is an award arising from a virtual arbitration hearing held on 7 May 2026 at 09:00 involving the Applicant, Ms. Nombulelo Dlamini, represented by Adv. M Mbambo, instructed by Cebo Mathenjwa Inc. Attorneys. The Respondent, KwaZulu-Natal Department of Education, was represented by Mr. Sthembiso Mkhwanazi, Acting Deputy Director: Human Resource Management.
The proceedings were digitally recorded, and witnesses gave evidence under oath.
The parties asked and were enabled to submit closing arguments in writing by the 29th of May 2026. Both complied.

ISSUE TO BE DECIDED

I am required to decide whether the Respondent failed in its duty to discharge the onus as envisaged by section 192(2) (b) of the Labour Relations Act of 66 of 1995 as amended, if so, to decide whether, the dismissal was both substantively and procedurally unfair, and if so, to re-instate the Applicant to her position she occupied before her dismissal.

BACKGROUND TO THE ISSUE

It is common cause that the Ruling issued by Commissioner Saayman enabled the Applicant to pursue these proceedings on the basis that the Respondent failed to renew the contract and this constituted a dismissal in terms of section 192(2).
It is further common cause that the Applicant was employed on a series of fixed-term substitute educator’s contracts. Each contract had a definite commencement and termination date as indicated below :

(a) 01 March 2023 – 18 August 2023 (Period) – Fixed-term substitute appointment (Duration);

(b) 28 August 2023 – 19 February 2024 (Period) – Fixed-term substitute appointment (Duration);

(d) 19 August 2024 – 19 February 2025 (Period)-Fixed-term substitute appointment (Duration);

(e) 13 March 2025 – 19 August 2025 (Period) – Fixed-term substitute appointment (Duration)

According to the Respondent the contracts terminated automatically by effluxion of time. Further, the Applicant was fully aware of the temporary and conditional nature of her appointment. No legitimate expectation of permanent employment or renewal was established. The Respondent acted within applicable and regulatory framework governing temporary educator appointments.
The Respondent further submits that our courts have consistently held that a fixed-term contract terminates automatically upon expiry unless there is evidence establishing a reasonable expectation of renewal.
Where a contract contains a clear commencement and termination date, and the employee understands the temporary nature of the engagement, termination by effluxion of time does not amount to dismissal. The Respondent submits that this is precisely the situation in the present matter.
Each contract:

• Clearly stipulated commencement and termination dates;
• Was limited in duration;
• Was linked to temporary institutional requirements; and
• Did not guarantee renewal or permanency.

The Respondent is convinced that the Applicant signed and accepted every contract with full knowledge of these conditions. It is therefore untenable for the Applicant to now allege that she believed that she was permanently employed or guaranteed continued employment indefinitely.
The Applicant testified in response to the averments made by the Respondent that, in addition she occupied two (2) positions, the one she was employed in and another, due to an Educator who was .chased away by the community, which made her teach Grades: 8; 9; 10; 11 and 12, when she was supposed to only teach Grade 11 and 12.
On the 5th day of August 2025 she was informed by one Mr. Mtshali, who is a Circuit Manager, that her contract was not to be renewed and the 19th day of August 2025 was to be her final day of working for the Respondent.
According to the Applicant she was not given reasons why the contract was not to be renewed. Both the incumbent and the Educator who had problems with the community have not been replaced to date.

ANALYSIS OF EVIDENCE AND ARGUMENTS

As a point of departure, pursuant to the Jurisdictional Ruling per Commissioner Saayman dated the 16th day of March 2026 which, inter alia, affirmed a claim by the Applicant that she was dismissed by the Respondent in terms of section 186(1) (b) of the Labour Relations Act 66 of 1995 as amended (hereinafter the (“LRA”),
The Labour Court in SA Rugby (Pty) Ltd v CCMA & others [2006] held that for an employee to establish a reasonable expectation of renewal of a contract for the purposes of section 186(1)(b), the employee was required to establish at least the following:

• a subjective expectation that the employer would renew the fixed-term contract on the same or similar terms;
• the expectation was reasonable; and
• the employer did not renew the contract or offered to renew it on less favourable terms.

According to SA Rugby (supra), relevant to the reasonableness of the expectation are following objective factors:
• the terms of the contracts;
• any past practice of renewal;
• the nature of the employment and the reason for entering the contract for the fixed term;
• any assurances that the contract would be renewed (in other words, any undertakings given by the employer); and
• any failure to give reasonable notice of non-renewal of the contract.
Further, the terms of the contract were held not to be decisive – the court stated that a reasonable expectation of renewal could exist even where a written contract expressly stipulates that the employee acknowledges that there is no expectation of renewal.
In the present case, the Applicant signed a series of five (5) contracts of employment consecutively and each expressly stipulated out the commencement as well as the termination date. Further, all the contracts stipulated that the appointments were substitutes for appointments respectively. The Respondent makes it clear that the Applicant was a substitute Educator who was replacing post level 2 and in turn the Applicant was a post level 1 Educator. It was further the Respondent’s testimony that the incumbent post level 2 Educator was on long sick leave which culminated in his medical boarding.
It also came to light that one Mr. Mtshali, who is a Circuit Manager, informed the Applicant that her contract was not to be renewed and the 19th day of August was to be her final day of working for the Respondent without given reasons why the contract was not to be renewed. Further, both the incumbent and the Educator who had problems had not been replaced.
The Labour Appeal Court in SA Rugby (Pty) Ltd v another [2008] 9 BLLR 845 (LAC), however, held that due to the clear terms of the contract the onus on the employee, will be heavier to prove objective evidence that give rise to the alleged expectation.
However, I have to re-iterate that section 186(1) (b) of the LRA provides that: Dismissal means that an employee reasonably expected the employer to renew a fixed term contract on the same or similar terms, but the employer offered to renew it on less favourable terms or did not renew it.
Indeed, the first segment of this matter answered section 186(1) (b) of the LRA provision by finding that the Applicant reasonably expected the employer to renew her contract on the same or similar terms but the employer did not renew it.
I must agree with my colleague’s Ruling that failure by the Respondent to renew the contract constituted a dismissal as also pointed out in SARU (supra) that the terms of the contract are not held to be decisive. The court further stated that a reasonable expectation of the renewal of the contract could still exist, especially in the present case where the Applicant signed a series of short-term contracts consecutively.
Section 192(2) of the LRA provides that if the existence of the dismissal is established, the employer must prove that the dismissal was fair.
Of significance in the present case, is that the Jurisdictional Ruling of Commissioner Saayman affirmed a claim by the Applicant that she was dismissed by the Respondent in terms of section 186(1) (b) of the LRA. This therefore meant that the onus shifted in terms of section 192(2) in that the Respondent had to prove that the dismissal was fair.
The Respondent has averred that the Applicant was a substitute Educator who was replacing a post level 2 Educator while the Applicant was a post level 1 Educator. It was also the testimony of the Respondent that the incumbent post level 2 Educator was on a long sick leave which culminated in his medical boarding. It also came from the Respondent that they do not know if the post level 1 Educator who vacated her post is back and that both the incumbent and the Educator who had problems with the community have not been replaced.
I have had to take note of the fact that the Applicant replaced someone who was on a long sick leave and when that person is medically boarded, she is informed that the contract will not be renewed. I totally agree with the Applicant’s legal representative that this was the time the contract should have been renewed. Needless to say, that the Respondent was just ready to part with her services as well.
In conclusion, I have also noted that the Applicant was unable to apply to other vacant posts because she was attached to the post she was occupying, and the Respondent could not cross-examine the Applicant on this aspect and put it to her that there were no posts advertised.
As a reasonable decision maker, taking into account what has been placed before this tribunal, in my own sense of justice and fairness, I can only conclude that the Applicant was dismissed and that in terms of section 192(2) of the LRA, the existence of the dismissal has been established, that it was both procedurally and substantively unfair and that the Respondent has failed to prove in its duty to discharge the onus as envisaged by section 192(2).
I can only make a finding that the Applicant be re-instated to her position that she occupied before her dismissal until the post is appropriately filled.

AWARD

I make the following findings:
That the Respondent failed in its duty to discharge the onus as envisaged by section 192(2) of the Labour Relations Act 66 of 1995;
That the Respondent has dismissed the Applicant unfairly and without justification and thus failed to prove substantive fairness in the dismissal;
That the Respondent has failed to produce evidence proving procedural fairness in dismissing the Applicant; and that;
That the Applicant, Nombulelo Dlamini (Ms), be reinstated retrospectively with effect from the date of dismissal (19 August 2025) to the position (Level 1) that she occupied before dismissal and to assume duties as early as possible but not later than 1 July 2026 on the same terms and conditions of employment;
That the Applicant be paid arears (wages) with effect from the date of reinstatement (19 August 2025) to the day of arbitration (7 May 2026) amounting to (R313 310.60) calculated as follows:

• 8 months’ salary R38 088.74 per month = R304 709.92 (gross)
• 7 days salary R1 228.67 per day = R 8 600.68 (gross)

That the Respondent, KZN DEPARTMENT OF EDUCATION, pays the Applicant, NOMBULELO DLAMINI (Ms.) the stated total amount in paragraph 37 of R313 310.60 (Gross) on or before 30 June 2026 Signature: