14 May 2026 – ELRC793-25/26EC

ARBITRATION

AWARD

Panelist: Jonathan Gruss
Case No.: ELRC793-25/26EC
Date of Award: 12 May 2026

In the ARBITRATION between:

Sphamandla Pakati
(Applicant)

and

Department of Higher Education and Training

(Respondent)

Applicant’s representative: In person

Respondent’s representative: Mr Chilwe

Summary: Labour Relations Act 66 of 1995, as amended, sections 33 and 33A read with clauses 7.2.2 and 69 of the ELRC Dispute Resolution Procedures, enforcement, payment of salary.

DETAILS OF HEARING AND REPRESENTATION

This dispute was scheduled for arbitration in terms of Section 33A (4) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 and 69 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The hearing was held on 24 April 2025 virtually utilising MS Teams and the proceedings were electronically recorded. The applicant, Sphamandla Pakati appeared in person and conducted his own case. The respondent, Department of Higher Education and Training were represented by Mr Chilwe, labour relations officer. The parties by agreement submitted written closing on 1 May 2026.
ISSUE TO BE DECIDED
This dispute concerns the alleged none-payment of wages for the month of September 2025.

BACKGROUND TO THE ISSUES

The following is common cause; the applicant was employed on 2 fixed term contacts as a temporary lecturer at the East Cape Midlands TVET College for the periods 27 January 2025 to 30 April 2025 and 1 May 2025 to 31 August 2025. He was serviced with a notice on 13 August 2025 of the expiry of his employment contact with the East Cape Midlands TVET College on 31 August 2026. The applicant during the later period of his fixed term contract earned R40183.47 per month that included a 37% allowance in lieu of benefits.
The respondent argued that the applicant’s fixed term contract had ended on 31 August 2025 and no employment relationship existed thereafter.
SURVEY OF EVIDENCE
This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
The applicant testified under oath as follows. On 19 August 2025 he was told by Ms Dlawu at a farewell ceremony to return when the college opens on 12 September 2025. She also phoned him in early September 2025 to return to work as a lecturer for mathematics N3, engineering science N3 and engineering drawings N3.
He therefore returned to the College on 12 September 2025 and was assisting with registration of student. As proof thereof he refers to registration cards. He also started teaching classes on 19 September 2025 and completed the attendance register that confirms this for the 1st week, 19 to 26 September 2025.
He submitted the class registers to Ms Maloi who was acting senior lecturer. The attendance registers for the period 29 September 2025 to 2 October 2025 form part of his bundle. After classes, Ms Maloi called him and told him that Ms Dlawu instructed that he must stop giving classes in that she was trying to work on his contract. On 3 October 2025 he went to HR to find out about R137.45 that was paid into his account. When he arrived he met Mr Mahamba, the HR, who informed him that they had not received a response from the campus manager as to whether he should be given a new contract. Mr Mahamba could also not explain the R137.45 paid into bank account.
Under cross examination, the applicant testified that between the 5th and 6 September 2026 he was called by Ms Dlawu to return to lecture drawings. When he returned he was told that they were still busy with his contract.
The applicant was taken to task in that he had not returned his laptop belonging to the respondent. It was further pointed out to the applicant in terms of his previous employment contract that clause 19.7 provides that on termination of employment the employee shall immediately deliver to the employer all assets, equipment, records, documents, accounts, letters, notes, memorandum and paper of every description that was in his possession or control relating to the phase and business of the College, whether or not they were originally supplied by the College and returned the property in good order. The applicant accepted that he has the respondent’s laptop in his possession.
Under re-examination, the applicant took issue with the campus manager circulating a photo of him thereby prohibiting him from gaining access to the College premises.
The respondent called Ms Thandiwe Dlawa as a witness who testified under oath. She testified that before the College opened in September 2025 for the 3rd term the applicant asked her if he must return. She told him that they requested for a contract and the recommendation was not signed.
She explained that they needed to get the request from head office. Head office must say that it is okay for a person to return. They have to look at the number of students that had registered. The applicant returned on 8 September 2025. She then called the applicant into her office in the presence of Ms Maloi and she informed him that the submission for the renewal of his contract had not been signed so he’s working without a contract and the College would not be able to pay him. The applicant thereafter did not stop coming into work although he was not provided with a new contract.
They then started registering students and applicant was busy helping with the administration. She again called him reminding him that the submissions regarding the renewal of his contract had not been signed. The applicant told her that he did not want to stay in his flat and wait, he would help with the registration while he was waiting for submissions and recommendation for his renewal to be signed.
The deputy principal academic has to sign and only after that person had signed will an employee be provided a fixed term contract to sign and instructed to resume duties. She called the applicant several times in the presence of Ms Maloi and reminded him that the recommendation or request had not been signed. She did keep him abreast as to what was happening.
The applicant did say that if the submissions were not signed by Friday, 12 September 25 he would be leaving. The applicant returned on 29 September 25 in that amount of R137.45 was paid into his bank account. The applicant enquired about this money deposited in his bank account. She again reminded the applicant that he was not going to be paid a salary if he was not given a contract. This was the last time that she spoke to him. On the applicant’s evidence that the witness called him to return to lecture, the witness indicated that she cannot call a lecturer if there is no employment contract.
Under cross examination, the witness indicated that she was unaware that the applicant was signing a register. She should have checked each page. She did, however, inform the applicant that he would not be paid. She never said to him on 19 August 2025 that he must come back when the College reopens.

ANALYSIS OF EVIDENCE AND ARGUMENT

Clause 69.6 provides that despite clause 69.5, an educator may refer a dispute to the ELRC concerning the failure to pay an amount owing to that employee in terms of the Basic Conditions of Employment Act; the Employment of Educators Act; the Personnel Administration Measures (PAM), or any regulation or subordinate legislation promulgated by the Minister of Basic Education or MEC for Education in respective of any province where an educator is employed as it relates to conditions of service, a collective agreement and the contract of employment.
The onus is on the applicant to prove that an employment relationship came into existence and then prove that he was entitled to remuneration. Should I find that no employment relationship came into existence after 31 August 2025 I would lack jurisdiction in that the ELRC may only arbitrate disputes between an employer and its employee as at the date of cause of action.
The applicant claimed that he was told to return to lecture when the College reopened. He returned and started working, firstly assisting with registration and thereafter lecturing. What is not in dispute is that no employment contract was signed between the applicant and the respondent’s subsequent to contract ending on 31 August 2025.
The respondent’s Ms Dlawa testified that she on a number of occasions informed the applicant that an employment contract had not been approved and therefore if he chose to assist, he does so on a voluntary basis and that he would not be paid. The applicant thereafter continued (working) until he was told that no employment contract had been authorised and therefore, he should leave the premises.
In the absence of a signed a fixed term contract within the public service this implies that no employment relationship had come into existence. The applicant continued assisting at the College hoping that his contract would be approved and he would sign the contract hoping to be paid for the period that he had been “working”. In my view he was doing this on a voluntary basis hoping that the respondent would come to the party eventually with the new contract. This did not materialise.
I find that the applicant has failed to prove that an employment contract came into existence after 31 August 2025 in that he had not signed a fixed term employment contract. The payment of the contract worker such as the applicant without an authorised fixed term contract that is signed by both parties would amount to an irregular payment. This would also amount to fruitless and wasteful expenditure.
I therefore make the following ruling.

AWARD

25. The ELRC lacks jurisdiction to entertain the referral in that no employment relationship came into existence after the 31 August 2025.