Panellist: Seretse Masete
Case No.: ELRC330-24/25LP
Date of Award: 12 MARCH 2025

In the ARBITRATION between:

Nomusa Sikhosana

(Union / Applicant)

And

Department of Education : Limpopo

(Respondent)

Union/Applicant’s representative: Madire Hezekiel
Union/Applicant’s address:
Telephone:
Cell:

Respondent’s representative: Portia Modipa

Respondent’s address:
Telephone:
Cell:

Particulars of the proceedings and representation

1. The matter was held on 19 and 27 February 2025 at the employer’s premises in Polokwane.
2. The applicant, Nomusa Sikhosana (employee) was represented by Hezekiel Madire of Sadtu while the respondent, Department of Education, (employer), was represented by Portia Modipa.
3. The proceedings were in English and digitally voice recorded.

Background and Nature of the dispute

4. The employee was employed as an educator at New Look Primary School under Pietersburg Circuit in Capricorn South District, earning R26,554-00/Month.
5. The employer terminated her contract unfairly citing that her contract ended on 31st December 2023. She expected to be retained indefinitely.
6. She believed her dismissal was substantively unfair and sought reinstatement.
7. The employer believed that the employee was appointed on a fixed term contract from January to December 2023 and was therefore not dismissed.
8. The school recommended that she be appointed on a permanent post but that was declined by the employer. The employee should note that recommendations are not appointments.
9. The employee testified a sole witness and submitted 1 bundle of documents marked A, while the employer called two witnesses and submitted one bundle of documents marked B.

Survey of evidence by the employee.
The employee, Nomusa Sikhosana, testified under oath as follows:

10. In 2023, she was teaching Maths at New look primary School appointed against post number 21.
11. She was made to fill the application forms for permanent appointment by the Principal in November 2023. In January 2024 she was at the same school when schools reopened around 15 January 2024. She was allocated to teach Maths and English in grade 5, see page 19 of bundle A. She got an assurance letter that the permanent appointment letter would be coming. In February 2024 her application was declined with the reason that she did not qualify because she did not have a professional qualification as an educator. She however had PGCE (post graduate certificate in Education) see page 14 of bundle A. The recommendation by the SGB for her to be permanently appointed was on page 17 of bundle B. She had an expectation to be permanently appointed because the principal kept assuring her so. However, when the disapproval letter came, she was told to look for work somewhere.
12. Her appointment was temporary on a fixed term basis. After filling in the forms, she expected to be permanently appointed. The post was advertised but she was not given an opportunity to apply. Her termination letter only indicated that she was unsuccessful. She was a qualified educator because she had PGCE and her SACE application was approved. The letter on page 45 of bundle B meant that she was dismissed. It was put to her that the district manager was the one delegated to appoint. It was further put to her that she was not appointed as a permanent educator, and there was therefore no dismissal. She agreed that she was not appointed but recommended. It was further put to her that her application was subjected to the approval by the employer. She did not comment. It was put to her that the SAQA letter on page 25 of bundle A did not say anything about the professional qualifications. She answered that her salary level was 7, and that was because she had PGCE.
13. It was put to her that the principal would come and testify that he never assured her but instead advised her that her contract terminated in December 2023 where she indicated that she would work as a volunteer. She denied.
14. She went back to the school in January 2024 because she expected to be appointed as she filled in permanent application forms.

Survey of evidence by the employer party.
1st Witness, Sekhaolelo Kwena Moses (the principal), testified under oath as follows:

15. He knew the employee because she was employed at New Look Primary School in 2023 against the promotional post on a temporary basis. There was no dismissal but that her contract came to an end. The employee was recommended for permanent appointment, but the Department rejected the application as per page 45 of bundle B. The PGCE was not accepted by the Department as a professional teaching qualification. As the School, they do not appoint but can only recommend. He wished that the employee could be appointed but she was not. She was not signing with the other educators but had a special register which was later misplaced or lost. He allowed her to come back to work in January 2024 because there was a shortage of educators and expected that she could be appointed. The employee was not dismissed but her contract had expired.
16. It was put to him that making the employee to fill forms for permanent appointment, he created a legitimate expectation. He answered that it was his wish, and he wanted her to be appointed. He confirmed that he engaged the employee even if he knew that her contract terminated in December 2023 because there was a shortage of educators. It was the employee who came to check if she could come back after the expiry of her contract, and he allowed her to return. The employee only worked for some few days, about 5 days. It was put to him that by allocating her on the timetable, he created a legitimate expectation for her. He answered that he did not know how to answer such a question. He did not know as to whether the PGCE was an accepted qualification or not, it was the Department’s decision. He was not aware that the Department did not recognise PGCE as a teaching qualification. He did not know which qualifications were used in appointing the employee because she was transferred from another school. He did talk to the employee that it was his wish that she be permanently appointed.
17. The HoD was the one who had the power to appoint, and he never appointed the employee. Recommendation is a wish and or a plea but there is no guarantee because the decision is taken by the employer, HoD or the delegated authority. The employee only worked for about 5 to six days, not two months.

2nd witness, Seome Wesley Mphahlele (Wesley), testified under oath as follows:

18. The appointment letter on page 48 of bundle B, was in such a way that should the post be advertised, the contract would be terminated. The employee was not dismissed but worked until the end of the contract’s term. She (employee) was recommended by the SGB to be appointed into a permanent post on 18 December 2023, see page 11 of bundle B. On page 45 of bundle B, the district manager declined to approve the permanent appointment recommendations on 31 January 2023. The reason for declining was that her qualifications were for administrative work, not as a teacher. The applicant studied methodology of teaching, but that involved teaching in finances. He confirmed that PGCE was a methodology of teaching. The honours qualification was for furthering her studies in administration finance area. She qualified as a teacher. The Maths course on page 59 of bundle B did not qualify her to teach. For one to teach, one needs a teaching qualification. The district manager in her letter, meant that the employee could not teach specifically at New Look Primary School. The employer detected an error that she could not teach in a general stream. The employee was never dismissed but that the contract came to an end.
19. The disapproval included an extension of the temporary employment. He maintained that the employee only qualified to teach administrative subjects for instance in the TVET colleges. It was put to him that the employee studied Education and that was what made her to be a professional educator. He responded that he did not have any comment. He later confirmed that the employee qualified to teach Maths in terms of the short course on page 59 of bundle A. It was put to him that the contract on page 48 of bundle B, was not applicable to the application for permanent appointment. He answered that, it had because they linked it with the recommendation for permanent appointment and that was realised later. The employee did not qualify to teach at the school and that was realised during the recommendations for permanent appointment. It was put to him that he was not telling the truth because the employee did qualify. He maintained that she did not qualify to teach at New Look. He conceded that the employee was a teacher as per SACE on page 16 of bundle A. It was put to him that SACE registers teachers who qualified as professional educators. He answered that SACE registers educators to teach anywhere.
20. When the employee was appointed, he was still working for the Department of Transport. Recommendations are not appointments, they still need to be approved or disapproved. The employee was not dismissed because she only applied, and her application was declined.

Analysis of the evidence and arguments

21. Common cause issues. The employee was employed as an educator on a fixed term contract at New Look Primary School from January to 31 December 2023. She left the employment on 31 December 2023 since her contract came to an end. The principal and the SGB made her to fill forms for permanent appointment in December 2023. On or around January 2024, she was back at the school and continued to teach Maths and English in grade 5. Her application for permanent appointment was declined in February 2024. She has a post graduate Certificate in Education (PGCE) qualification. She was recommended by the SGB for permanent appointment. Her SACE application was approved. The post was advertised, and she did not apply.
22. Disputed issues. She did not have professional teaching qualification. She was assured of permanent appointment by the employer. In 2024, she worked for two months, January and February.
23. My analyses. The dispute of the employee was that the employer created a reasonable expectation for her to be appointed on an indefinite basis in terms of section 186(1)(b)(ii) of the Act. Her relief was to be retained as a permanent educator. This was the dispute of the employee.
24. The appointment of educators in the Department of education is the responsibility of the Head of Department (HoD) or the delegated official. It is correct that to be recommended does not mean that one’s application is approved. The employee’s application was recommended by the SGB but it was not approved by the accounting officer or their delegate. However, she was made to return to work in January 2024 where she continued teaching Maths and English in grade 5.
25. Legitimate expectations for permanent appointment. I want to start by dealing with legitimate expectation to renew a fixed term contract, not necessarily for permanent appointment. In NUM obo Mpaki v CCMA and others JR 1983/2024(2016) ZALCJHB 354, the court held that to deal with the enquiry into reasonable expectation one should determine whether the subjective expectation objectively assessed, is reasonable. Apart from the subjective perception, there must be an objective basis for expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The court identified a number of factors which may influence such a finding, namely, (a) agreements. In casu the agreements cited by the employee were between herself, the SGB and the Principal. Such agreements cannot stand on the balance of probabilities because they were not made by a person with authority to appoint. (b) undertakings. There was no evidence led on any undertakings except the agreements mentioned in (b) above. (c) custom or practice regarding renewal. The employee testified that her contract was renewed two times which made her to have legitimate expectation. It is not always the case that a fixed term contract which was rolled over for several times would create a legitimate expectation, see Malandoh v SABC, case no. J 700/08, (d) the availability of the post; the post was later available for advertisement on 16 January 2024. Parties agreed that the employee’s fixed term contract was against the promotional post no 21 and not post no 20 as indicated on page 12 of bundle A, and she was informed that it will terminate when the post was permanently filled or when the contract came to an end whichever came first. The employee on the balance of probabilities could therefore not be able to claim permanent appointment into a promotional post. Since the post was advertised, she could have submitted her application as well, more so that her appointment letter made it clear that her contract would end when the post was permanently filled. (e) inconsistent conduct; there was no evidence of inconsistent conduct led. (f) failure to give reasonable notice; there was also no evidence to show that the employee was given a notice or not and the employee did not challenge the issue of notice. The contract ended exe lege. (g) the nature of the business. The business of the employer involved teaching and learning. The nature of the employer’s business in this case did not have an impact on the permanent appointment of the employee. She just had to prove that her expectations to be permanently appointed were reasonable in terms of the factors above which are not exhaustive.
26. Although the factors in Num case above, deal mostly with dismissal in terms of section186(1)(b)(i) of the Act, they also play an important role when dealing with section 186(1)(b)(ii) of the Act which deals with reasonable expectation of permanent employment. The merits in the current case differed with those in Nowalaza and others v the OCJ and others and another (J1177/2017) [2017]ZALCJHB234, in that court, the employees’ contracts were renewed on several occasions. On top of that, the employer made promises that the employee’s fixed term contract would be converted into permanent appointment. There were therefore agreements between the employer and the employees. The employees managed to interdict the employer from filling in the posts through the recruitment processes. In casu, there were no official promises and or agreements and the employee confirmed that her contract came to an end on 31 December 2023.
27. My finding on the balance of probabilities is that there was no reasonable expectation raised by the employer’s conduct. The fixed term contract of the employee ended on 31st December 2023 and the employee confirmed that. There was therefore no dismissal, the contract ended exe lege. The fact that the employee came back in January 2024 and worked for about 6 days cannot be a reason to trigger legitimate expectation. The employer’s witness, the principal, testified that he felt for her and allowed her to work for about 5 to 6 days, and she did not challenge the principal when he was on the stand.
28. I have considered the fact that when the employer disapproved the application of the employee’s permanent appointment, mentioned the reason that the employee was not professionally qualified. The employee led evidence of her professional qualifications as she possessed post graduate certificate in education (PGCE), Honours Bachelor of education, see pages 14 an15 respectively of bundle A. The witness of the employer, the principal did not know whether those qualifications qualified the employee to teach as a professional educator or not. The Second witness of the employer from HR, Wesley, was so not a credible witness, he was the worst witness ever without a standpoint. He was going forward and backward, for instance, he testified that the employee did not have professional qualifications, next time he would agree with the employee that her certificates qualified her to teach as a professional educator. Going forward, he would turn around and say the employee’s certificates qualified her to teach as a professional educator but not at New Look school. He also conceded that SACE was a body that registers professional educators who could teach anywhere, mind you, the employee had the SACE certificate of registration. The employer did not lead any evidence to corroborate that the employee’s qualifications did not qualify her to be a professional educator.
    Considering paragraph 28 above, would we say the failure by the employer to proof that the employee’s qualifications did not qualify her to be a professional educator made the employee’s alleged expectation to be reasonable or legitimate! Reasonable expectations are those factors which are triggered by the employer. There are several of them, see NUM case above, and they should all be taken into consideration when determining reasonable expectation on the renewal of the contract. The employee relied more on one of them, viz, promise made by the SGB and the principal. The principal and the SGB did not have an authority to appoint an educator, see SARPA and others v SA Rugby (Pty) Ltd and others, SARPU and another (2008) 29ILJ2218 (LAC) where the players’ contract were promised to be renewed by the person (the couch) who did not have authority to appoint Also see Nowalaza case above where the court held that the employees’ expectation for permanent appointment was legitimate because they were promised by the person with authority. The principal himself testified that he only had a wish that the employee could be permanently appointed. My duty therefore was to determine the alleged reasonable expectation of the employee to be retained on an indefinite basis in terms of section 186(1)(b)(ii) of the Act. My conclusion is therefore that the employee did not make up a good case and her relief should be rejected.

Award

29. There was no reasonable expectation for the employee to be employed permanently by the employer. The employee has failed to establish that she was dismissed.
30. Employee’s case is hereby dismissed.

Seretse Masete

Date 12/03/2025
ELRC Panellist