12 May 2025 -ELRC1091-24-25GP

IN THE ELRC ARBITRATION
BETWEEN: ELRC 1091-24-25GP

PHUMLA ALONI “the Applicant”
and

GAUTENG DEPARTMENT OF EDUCATION “the Respondent”

ARBITRATION AWARD

Case Number: 1091-24/25GP

Date of award: 12 May 2025
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 9th of April 2025 and proceeded as such. The Applicant was represented by Mr. Andrew Mashila the Union Official of KAW. The Respondent was represented by Ms. Valerie Mnisi the employee of the Respondent in her capacity as Labor Relations.
1.2. The proceedings were held virtually.
1.3. The arbitration was concluded on the 9th of April 2025
1.4. Before the start of the arbitration process, all the parties submitted their bundle of documents by email.
1.5. The parties agreed to file their closing arguments by close of business on the 25th of April 2025.
1.6. The submissions of the 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.

BACKGROUND

2.1. The Applicant Ms. Phumla Aloni was employed as an educator at Thulani Secondary School.
2.2. She was appointed in a Promotional Post from 2022.
2.3. The Applicant Ms. Aloni has signed several contracts from 2022 until 31 December 2024.
2.4. The Applicant was not given notice for the termination of her contract.
2.5. The Applicant was approved for marking in December 2024.
2.6. On the 7th of January 2025 she went back to school, after teaching Matriculants she was called and informed verbally that her services were terminated, her contract had not been renewed.
2.7. Feeling aggrieved she referred her matter to the ELRC.
2.8. The arbitration is in respect of a referral by the Applicant of an alleged unfair dismissal as provided for in section 186(1)(a) of the Labor Relations Act 66 of 1995 (LRA.) termination of contract without notice
2.9. Given the above, the Commissioner is required to determine whether there was unfair dismissal and if there was, then to determine whether it was fair or not.
2.10. Although the Applicant Ms. Aloni bore the onus of proving the existence of the dismissal and was therefore expected to commence, the Respondent’s witness was already present and available to proceed. The Respondent accordingly requested that the witness be allowed to testify first so that she could be released to return to her work duties.

RESPONDENT’S EVIDENCE AND ARGUMENTS
ITUMELENG PANYANE (THE PRINCIPAL)

3.1. The witness Ms Panyane testified under oath and stated that Ms Aloni had been employed as a Teacher at Thulani secondary School from 2022 to 2024, during which period she taught Economics, Economic Management Sciences, Tourism and Maths Literacy. Ms Aloni was appointed temporarily to a post that had been advertised and was referred through the District Office for placement into a conditional growth post. Although the prevailing conditions at the school did not strictly warrant a permanent appointment, there was a demonstrated need for assistance.
3.2. Her initial contract commenced in mid-2022 and concluded at the end of that same year. In 2023 the school experienced an increase in learner enrolment, which resulted in the awarding of three (3) growth posts. The school was therefore permitted to appoint three (3) temporary educators. Ms Aloni was informed oof these developments and in December she received a call from the Head Office. The district once again facilitated her placement, requesting that she be appointed to one of the growth posts. While the terms of her 2022 appointment remained applicable, the difference on this occasion was the availability of an official growth post. She duly signed renewable contracts, which were extended on a term-by-term basis until the 31st of December 2023.
3.3. In 2024, the school was allocated a substantive PL2 post (Promotional Post). As is customary, the school had a discretion on how to utilise that post. It was decided in the Management meeting that since the Commerce Department had long been without a Head of Department (HOD), the post would be used to temporarily fill the gap. As part of this process a PL1 educator would be appointed against the promotional post while the recruitment process for the HOD was underway. Ms Aloni was then appointed to that temporary post in January 2024, while Mr. Ramoshai was designated as Acting HOD.
3.4. Upon finalization of the recruitment process for the promotional post, the school was advised that all educators acting in promotional posts or appointed against them would continue in those capacities until December 2024. Ms Aloni was aware that she was serving in an acting capacity.
3.5. The witness further stated that in January 2025, Ms Aloni participated in the (SSIP) Secondary School Intervention Program, a voluntary initiative aimed at assisting matriculants, which takes place during school holidays. Participants in the program are paid a nominal travel allowance of R250 per session. Ms. Aloni attended the program on the 7th of January 2025. It was on this date that she was informed that her contract had come to an end.
3.6. Ms. Panyane confirmed that she was aware of an official Memorandum, regarding the termination of contracts at the end of March 2025, which prompted her to contact Mr. Jafta to confirm whether the incumbent for the substantive post would be commencing in January 2025. She testified that Mr. Jafta visited the school on the last working day before teachers were to leave for marking duties. Due to Ms. Alonis pregnancy and recalling that she had previously lost a child, Ms. Panyane expressed that she was afraid to personally inform her of the contract’s termination. She therefore pleaded with Mr. Jafta to relay the message, however, he declined stating that it was her responsibility as the Principal.
3.7. Ms. Panyane further testified that she expressed concern to Ms. Aloni regarding her ability to cope at the marking centre, due to the stressful conditions and asked whether she was certain she would be able to manage. Lastly the witness denied having made any promises to Ms Aloni regarding permanent employment.

2nd WITNESS
LIZWE JAFTA (ASSISTANT DIRECTORFOR RECRUITMENTJOHANNESBURG WEST DISTRICT OFFICE)

3.8. Mr. Lizwe Jafta testified under oath and stated that he serves as the Assistant Director of Recruitment. His responsibilities include overseeing the recruitment process at both the District Office and Individual schools, ensuring that appointments are executed accurately and in accordance with applicable policies and budgetary constraints.
3.9. He explained that there are various types of teaching posts, including what is referred to as the “Growth Post” A growth post is allocated to a school to demonstrate an increase in learner enrolment. Such a post is temporary and is only valid until the 31st of December of the year in which it is allocated. Any appointment made to a growth post automatically terminates at the end of that year. It does not follow that an educator occupying a growth post will be permanently appointed thereafter. I. The substantive post is a newly created permanent position which includes a probationary period. Only upon successful completion of the probation period may the appointed educator be converted to permanent employment.
3.10. He testified that, in the event a school is allocated a growth post which concludes in December, if by October of that same year the HR division receives a new post establishment indicating continued growth for the following year (e.g., 2026), then such consistency may result in the growth post being converted into a substantive post for the next academic year.
3.11. Mr. Jafta emphasized that in such cases, priority must be given to educators already holding permanent status before any new appointments are considered.
3.12. Mr. Jafta testified that Ms. Aloni had been appointed to a post that was against a promotional post. For such an appointment to occur, the school is required to first analyse its staffing needs and submit a completed GDE 79 form. Only after this submission can the proper recruitment procedure be followed.
3.13. He stated that the promotional post to which Ms. Aloni was temporarily assigned has since been filled by the successful incumbent, and as a result, there are no longer any vacant posts available at the school.
3.14. Mr. Jafta further testified that he visited Thulani Secondary school towards the end of the academic year, a period during which he typically conducts monitoring visits to ensure that the school principals are reminded to inform the temporary staff members of the impending conclusion of their contracts. During his visit at the school, he observed that the principal appeared to be fond of Ms. Aloni. He therefore emphasized to the principal the importance of clearly communicating to Ms. Aloni that her contract would not be renewed, in order to prevent any false expectations regarding continued employment in the following year.
3.15. He confirmed that a formal memorandum was disseminated to all the principals and staff in October 2024. The memorandum was emailed directly to the schools. After that memorandum, there was a meeting called at the Head Office where the Department communicated the decision to implement a cost-containment strategy, all promotional posts were to be placed on hold, unless approval for the post had already been granted prior to the 24th of October 2024.
3.16. In Ms. Aloni’s case, she was already captured in the system, and it was therefore agreed that her employment would continue until 31st of December 2024. Her contract was not abruptly terminated. Mr. Jafta emphasized that the contract Ms. Aloni signed had clearly stated commencement and termination dates, and she was therefore aware that her employment would conclude at the end of the year. No one can start working for the Department without signing a contract with the commencement date and termination date.

APPLICANT’S EVIDENCE AND ARGUMENTS
PHUMLA ALONI (APPLICANT)

4.1. The Applicant Ms. Aloni, testified under oath and stated that she commenced employment at Thulani Secondary School in May 2022. She was approached by the subject advisor, who informed her that the school was underperforming and required intervention. She was appointed to replace Mr. Siwela and was advised that she would be occupying a growth post.
4.2. She worked continuously from May to December 2022. However, she testified that in December the narrative changed, she was informed by the Principal and a staff member, Ms Mcingi that they needed to consult with the District Director regarding her position.
4.3. Ms. Aloni further testified that prior to joining Thulani Secondary School she held a permanent teaching position at another school. She resigned from that position in order to accept the opportunity at Thulani.
4.4. In February 2023, she was contacted by an IDSO official who instructed her to report for duty, stating that her appointment had been approved. Despite resuming work, she did not receive her salary for three (3) months and was only remunerated at the end of April 2023. She stated that the employment forms that she completed during this period did not indicate any specific start or end dates.
4.5. In July or August 2023, she became aware that her contract had expired only after failing to receive her salary. She reported the matter and only then was she made aware that her contract had ended.
4.6. In December 2023, she informed the Principal that she was expecting a child and due to give birth soon. The Principal advised her to return in April 2024. However, following the still birth of her child, she returned earlier, in February 2024 opting not to take the full maternity leave.
4.7. The Applicant stated that she was aware of an open HOD post, but she did not apply as she believed that possession of Accounting as a subject was a prerequisite for eligibility. She did not hold Accounting and therefore assumed she did not qualify.
4.8. She testified that, before departing for the marking centre in December 2024, she went to the Principals office. The Principal was with a SGB (school governing Body) member. They both congratulated her for securing placement at the marking centre. When she enquired whether she needed to submit ant documentation before departing, the Principal responded that she would consult the district, but she did not have to submit anything.
4.9. Ms. Aloni stated that she does not know Mr. Jafta and would not be able to recognise him even if he saw him.
4.10. In January 2025, a timetable for grade 12 educators was shared in the school’s WhatsApp group. Her name was not on the timetable, only her subject area was listed. On the 7th of January 2025, she reported to the school and conducted a three (3) hour session with learners. Afterwards, she was summoned to the Principals office. There, the Principal inquired about her expected delivery date. Upon informing her that she was due in March, the Deputy Principal was called in. It was then communicated to her that the District had appointed a new HOD to teach Economics and Business Studies. She was informed that she must stop working as she would not be paid.
4.11. She stated that she was not the only person affected in this manner, and that she was asked to hold on. Based on that assurance, she continued to hope that once schools reopened, she would be called back to resume her duties. She testified that she assumed that she still had employment.
4.12. She acknowledged that the January timetable did not reflect her name but reiterated that her subject was listed. She stated that, had the Principal clearly informed her that her employment had ended, she would have taken steps to seek alternative employment and would not have reported to school in January 2025.
4.13. She further expressed concern that she was not provided with any notice or letter of termination. She confirmed that she eventually received the memorandum from the Acting HOD. Based on the understanding that the newly appointed HOD would only assume duties in April 2025, she believed she would be permitted to continue working until the end of March 2025.

ANALYSIS OF EVIDENCE

5.1. The matter before me concerns whether the Applicant, Ms. Aloni was dismissed and if so, whether such dismissal was substantively and procedurally unfair.
5.2. Did the Applicant establish the existence of a dismissal?
The onus of proof in such cases is on the employee to prove the dismissal by placing facts which objectively considered, would lead to a conclusion that she held a reasonable expectation that her fixed term contract would be renewed.
5.3. The provisions of section 186 (1) (b) of the LRA were interpreted in University of Pretoria vs CCMA and Others as follows:
(i) The words employed in Section 186 envisage that two requirements must be met in order for an employer’s action to constitute a dismissal.
(a) A reasonable expectation on the part of the employee that a fixed term contract on the same or similar terms will be renewed: and ‘’
(b) A failure by the employer to renew the contract on the same terms or failure to renew it at all.
(ii) It is common cause that the Applicant was initially employed in May 2022 in what was characterized as a “growth post” According to both the Applicant and the Respondent witnesses this post was temporary and tied to increase in learner enrollment. Mr. Jafta testified that growth posts are not permanent in nature, are limited to the academic year and automatically expire on the 31st of December of that year unless renewed by submission of new paperwork and formal approval.
(iii) The Applicant’s evidence is that she was appointed without clear indication of a contract term and that she had previously held permanent employment, to which she resigned to take up the post at Thulani Secondary school. While she may have misunderstood the implications of her new position, this does not alter the legal character of the fixed term nature of the appointment as established by the Respondent’s documentary and oral evidence.
(iv) As stated, the fixed term contract entered into between the Applicant and the Gauteng Department of Education was renewed on no less than three occasions from its inception in 2022 until the 31st of December 2024.
(v) The mere fact that a fixed term contract was renewed repeatedly does not in itself give rise to the existence of a reasonable expectation of renewal. The renewal or extension must be viewed within the context of its purpose and objectives.
(vi) The Applicant alleges a dismissal on the grounds that she was not informed timeously that her employment would end. She claims she reported to work in January 2025 under the assumption that her contract was still valid and that the school’s conduct created a reasonable expectation of continued employment. In the case of Owen and Others v department of Health, KwaZulu Natal (2009) 30 IL 2461 (LC), the Court found that if an employer permits an employee to continue working beyond the expiry of a fixed term contract, the contract is deemed to have been tacitly renewed on the same terms and conditions, but for an indefinite period.
5.3.1. The Respondents officials Mr. Jafta and the school Principal, demonstrated procedural awareness by informing schools in October 2024 of the cost containment strategy including the freezing of posts not already approved by the 24th of October 2024. Although there had been a previous memo sent to all the schools, steps were taken to ensure that principals were advised to inform temporary staff of the ending of their contracts.
(vii) While it may be argued that the communication to the Applicant could have been more direct or empathetic- particularly in light of her pregnancy and personal loss- the legal test remains whether the Respondent’s conduct amounted to a dismissal in law.
5.3.2. The evidence shows that the Applicant was employed in a series of fixed term contracts, all of which included defined start and end dates. Mr. Jafta and the Principal both testified that the Applicant was made aware of the expiry of her latest contract. The Applicant conceded that her name did not appear on the 2025 timetable and that she had received the memorandum indicating the end of contracts and the impact of the department’s cost containment measure.
5.3.3. Additionally, the Applicant acknowledged that she was told to “hold on” which may have created some uncertainty, but does not in law, amount to a guarantee of renewal or a permanent appointment. The mere hope or desire to be reappointed, especially in light of clear expiry dates and departmental policies does not constitute a reasonable expectation under prevailing jurisprudence.

FINDING

6.1.1. Having considered the totality of the evidence, the following findings are made:
6.1.2. The Applicant was employed on a series of fixed term contracts tied to growth and promotional posts.
6.1.3. The final contract terminated by effluxion of time on the 31st of December 2024
6.1.4. The Applicant has not established that she had reasonable expectation of renewal, as required under section 186 (1) (b) of the Labor Relations Act.
6.1.5. The Respondent complied with its duty to notify schools of the contract terminations and applied the policy uniformly.
6.1.6. Accordingly, the Applicant has failed to discharge the onus of proving that she was dismissed.
This application is dismissed.
The ELRC may close its file.