Panellist: Khuduga Tlale
Case Reference No.: ELRC1299-24/25FS
Date of award: 11 May 2025
In the matter between:
Nthabiseng Genevean Lydia Mokopu Applicant
And
Department of Education – Free State Respondent
ARBITRATION AWARD #
Details of hearing and representation
1. The arbitration hearing between Nthabiseng Genevean Lydia Mokopu (“the Applicant”) and Department of Education – Free State (“the Respondent”) was held on 16 April 2025 at the Respondent offices in Bloemfontein. The Applicant appeared in person, and Mr. DM Serape, SADTU full-time shop steward, represented her. Mr. Solomon Moloi, Labour Relations Officer, represented the Respondent.
2. These proceedings were conducted in English, and were digitally, and manually recorded. The parties agreed to submit written heads of argument on 24 April 2025, and they submitted.
Issues to be decided
3. The issue to be decided is whether the Respondent dismissed the Applicant in terms of Section 186 (1)(b)(i) of the Labour Relations Act, as amended (“Act”).
Background to the issue
4. The Applicant was employed by the Respondent on a fixed-term contract from 01 April 2022 to 31 December 2024, as a temporary educator against a promotional post. The contract was not renewed in the year 2025. The Applicant alleged that the Respondent created legitimate expectation to renew her contract. The Applicant earned R338 376, 00, per annum.
5. The Applicant referred this unfair dismissal dispute to the Education Labour Relations Council (“Council”). This matter remained unresolved at the conciliation on 12 March 2025, and the certificate of non-resolution was issued and, the dispute was then referred for an arbitration. The parties submitted bundle of documents, and they were marked “A”, and “R”.
Survey of Evidence
Applicant
First Witness: Mr. Thapelo Seliane
6. The witness testified under oath that he was the chairperson of Lereko School Governing Body. The Applicant improved the school academic results, and the school governing body needs the Applicant’s services. He was requested to facilitate the conversion of the Applicant’s position to permanent. The school principal promised them that if the vacancy became available, the Applicant would be absorbed.
7. Under cross-examination, he confirmed that the Applicant was appointed on a fixed-term contract. He understands that the fixed-term contract might be renewed or not. It was not fair for the Applicant’s contract not be renewed. The entire school were satisfied with the Applicant’s work performance. The contract was not renewed because of the “in-excess” lists of the educators in the staff-establishment. Mr. Kareli, circuit manager came to the school, and he said that the Applicant was appointed on a three months’ basis, but if she had been appointed on a six-month basis, she would have a strong case. They later established that the Applicant was appointed on a six months’ contract, but her situation was not resolved.
8. He was not aware that the Applicant was employed against a promotional post as per “R1-R3”. He confirmed that the Applicant was employed on a contractual basis. Document “R22” was the Applicant notice of termination of service, but it was the first time he saw it. Even the school governing body was not aware of this notice of termination. The principal said that it was possible to appoint the Applicant on a promotional post. There were educators transferred to their school at the beginning of the year 2025. They are not against the “in-excess” list, but it was unfair not to have been consulted about the needs of the school.
9. Under re-examination, he stated that document “R2” indicated that the Applicant would be given one-month notice, if the post is filled. There was no acknowledgement of the notice of termination as per “R22”.
Second Witness: Ms. Malikabane Dinah Letshabo
10. The witness testified under oath that the Respondent employed her as an HOD at Lereko Secondary School, and the Applicant was reporting to her. The school principal said that it might be possible that the Applicant might not come back to school in the year 2025. The Applicant was a hard worker, and mother to the learners. The school governing body told the educators that the Applicant’s post was saved, and she would be absorbed. Document “A7” was the Applicant time-table for the year 2025. The educators transferred to the school were not familiar with secondary teaching.
11. Under cross-examination, she stated that the Applicant was employed on a fixed-term contract against promotional post. It was unfair to appoint someone against promotional post, because if that position is filled, her contract would be terminated.
12. Under clarity questions, she stated that they had educator, PL1 vacant position, but it was filled by an “in-excess” educator.
Third Witness: Ms. Nthabiseng Genevean Lydia Mokopu
13. The witness testified under oath that she was the Applicant in this matter. She stated that she signed documents “A5-A9”. The contract was extended from 01 January 2024 to 31 December 2024, but she was not given a notice of termination. It was the first time she saw the notice of termination in this proceeding as per “R22”. She stated that this notice was not served to her.
14. She stated that the Respondent dismissed her. The principal explained to her the type of position she was appointed. She was appointed against a promotional post. If the Respondent employed someone on a promotional position, her contract would be expiring. If the school gained a post, she would be absorbed. The other educator was absorbed, and she continuing working against promotional post.
15. On 12 January 2025, she received a telephone call from the principal informing her that she must not report for duty because her contract expired. She was surprised because she was not given a notice of termination. She was expected to serve a one-month notice. The subjects’ allocation was done in the year 2024, and she had hope that her services would still be required in the year 2025 as per “A10”. She sought reinstatement if found that she was dismissed.
16. Under cross-examination, she confirmed that she was appointed on a fixed-term contract against a promotional post. She had no knowledge that the promotional post was filled. She was informed telephonically that her services were no longer required.
17. Under re-examination, she stated that there was no communication about the termination of her contract.
18. Under clarity questions, she confirmed that she was employed against promotional post since the years 2022 to 2024. She was employed against HOD: Social Sciences position. She stated that this promotional post was filled in September 2023. Her employment status was not changed to vacant substantive post. She wanted to be appointed permanently on educator PL1, that was created when the promotional post was filled. She maintained that she was never appointed as an educator PL1. She had no knowledge which position was vacant in the year 2025. The principal said that her contract expired, without any reasons provided.
Respondent
First Witness: Mr. Michael Tshabalala
19. The witness testified under oath that the Respondent employed him as a Deputy-Director: HRM. The Applicant lodged a grievance about the non-renewal of her contract. She was employed against promotional post until that post was filled. During November 2024, the Respondent had to consider the educators that were “in-excess” on the staff establishment for the year 2025. The Respondent had to prioritize those educators.
20. Documents “A5-A7” were appointment letters of the Applicant. Document “R22” was the notice period for the termination of a contract, and it was served to the Applicant. This notice was not acknowledged. The school had three (3) positions as follows; PL1, PL2 and PL3, and they were filled. It was the responsibility of the Respondent as the employer to fill the vacant positions at the school. They complied with ELRC Resolution 4 of 2018, when filling the positions.
21. Under cross-examination, he stated that the contracts’, and notices’ were dropped at the pigeon holes, and the school principals fetched them there. The notice would be issued if the position was filled. The Applicant was notified that the contract was not going to be renewed through the principal as per “A22”. The Applicant was on a temporary contract from the years 2022 to 2024. They had to first placed an “in-excess” educators where there was a need for the year 2025.
22. Under clarity questions, he stated that they dropped all correspondence to the schools at the pigeon holes, and the principals collected them there. The reason for the non-renewal of the Applicant’s contract was due to “in-excess” educators as per ELRC Resolution 1 of 2019. The Respondent had one hundred, and eighty-eight (188) in-excess educators in the staff establishment for the year 2025. They are currently left with fifty-one (51) “in-excess” educators to be placed. The educator appointed against a promotional post, could not be absorbed permanently.
23. All the promotional positions must be filled through advertisement. If the school appoint within, they create a vacant post. The vacant positions must first be filled by “in-excess” educators. The Applicant was never appointed on a vacant and substantive position. The decision lies with Respondent as the employer to appoint, not the school. She was appointed on a fixed-term contract that has a beginning and end.
Survey of Arguments
Applicant
24. The Applicant’s representative submitted that the evidence of the Applicant’s witnesses corroborated to each other about the legitimate expectation created by the Respondent. The Respondent did not serve the Applicant with the notice of termination. The Applicant representative referred me to Ansies Enterprise CC t/a Boss Alu and Steel v CCMA and others (JR 2126/19) (2020) ZALCJHB 82 (handed down on 25 May 2020) and argued that this case was his authority relating to reasonable expectation. The Applicant representative further referred me to SA Clothing and Textile Workers Union and another v Cadema Industries (Pty) (C277/05) 2008 ZALC, and argued that this case was his authority that the reasonable expectation constituted a dismissal.
Respondent
25. The Respondent’s representative submitted that the Applicant was appointed on a contract against a promotional post. In the Applicant appointment letter, it was stated that “in the case of any appointment, you will be given a one-month notice to vacate the post”. The Respondent’s representative referred me to Ukweza Holdings (Pty) Ltd v Nyondo and others (PA 2/19) (2020) ZALAC 7; (2020) 6 BLLR 544 (LAC); (2020) 41 ILJ 1354 (LAC) and argued that this case was his authority that there was no dismissal, the contract terminated by the effluxion of time. The Applicant was informed of the nature of her appointment. There could be no legitimate expectation for the renewal of the contract since the Respondent considered “in-excess” educators. The Council lacks jurisdiction to hear, and determine this matter because there was no dismissal.
Analysis of evidence and arguments
Introduction
26. It is a trite that the common law principle that a fixed-term contract expires automatically on the expiry of the date on which parties agree that it should, but it has been altered by the provisions of section 186(1)(b)(i) of the Act. The section reads as follows:
“Dismissal” means that – an employee reasonably expected the employer to renew 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”.
27. In terms of section 192 of the Act, read with section 186(1)(b), the employee bears the onus of showing that she was dismissed because the employer failed to renew or renewed a fixed-term contract on terms less favourable than those that existed previously despite expectation of its renewal. Once the employee has discharged the onus of showing that the employer has failed to renew a fixed-term contract despite the existence of a reasonable expectation, the onus rests of on the employer to show that the termination of the contract was for fair reason.
Whether the Applicant was dismissed?
28. A dismissal in terms of section 186(1)(b)(i) of the Act is confined to determining whether there was a reasonable expectation that a fixed-term contract should be renewed, and does not include an expectation about permanent employment on the expiry of a fixed-term contract. There is no merit that the Applicant held a reasonable expectation that her contract would be renewed on a permanent basis. The Applicant was always employed on a contract basis. She made out no case that she held a reasonable expectation that she would be employed on a permanent basis.
29. The test for reasonable expectation was two-fold. The first dealt with whether the employee actually expected the contract to be renewed, and the second, whether the expectation was reasonable. The termination of a contract of employment in fixed-term contracts, and the fairness thereof are integrally linked by the concept of “reasonable expectation” for the renewal of the contract.
30. In this matter, the starting point is to determine whether the Applicant was dismissed by the Respondent. The question that needs to be ask is whether the facts as presented by the Applicant objectively establish that a dismissal had occurred when the Respondent did not extend her employment contract. Paragraph 2 of the Applicant extension of the contract states that “in the case where the vacant post is filled prior to the 31 December 2024, you will serve one-month notice, and communication will be provided to you” as per “A2”.
31. The Applicant was given an undertaking that her contract would be extended until the position she occupied was filled, or the protocol expired. The Respondent failed to prove during the proceeding that the Applicant was served with the notice of termination in November 2024 as per “R22”. The failure to inform the Applicant prior to the expiry of the contract would not be renewed or extended or that it would be coming to an end, did not mean that it was either automatically extended or that the employment had become permanent, unless the provisions of the law specifically provided for that. It is not in dispute that the Applicant worked until the expiry of her contract on 31 December 2024. It was not in dispute that the promotional post that the Applicant appointed against was filled.
32. It was not in dispute that to fill the promotional post, the Respondent needs to follow its recruitment processes by advertising the vacant promotional position. The promotional positions at the school level are, head of department, deputy principal, and principal. Section 6(1)(b) of the Employment of Educators Act (“the EEA”), states that subject to the provisions of this section, the appointment of any person, or the promotion of any educator in the service of a provincial Department of Basic Education shall be made by the Head of Department. It is clear that the person who had the authority to appoint educators at the school level is the Head of Department, not the school governing body.
33. The Applicant had an expectation that her contract would be renewed, but her expectation was based only on her hopes, and was therefore, unreasonable as no expectation was created that her contract would be renewed. It was alive that an express term in a fixed-term contract to the effect that the Applicant entertains no expectation of renewal is not a guarantee. The Applicant failed to discharge the onus of showing that she subjectively had an expectation that her contract would be renewed when it expired, or that she had a reasonable expectation that her contract would not have terminated.
Conclusion
34. In this circumstances, I find that the non-renewal of the Applicant’s contract did not amount to a dismissal as envisaged in section 186(1)(b) of the Act. The Respondent does not need to prove the fairness of the dismissal, as no dismissal occurred.
Award
35. The Applicant failed to establish the existence of the dismissal, and no dismissal occurred.
36. The Applicant’s case is dismissed.
Signature:
Commissioner: Khuduga Tlale
Sector: Education