14 October 2025 -ELRC1046-24/25WC

Commissioner: Gerald Jacobs
Case Number: ELRC1046-24/25WC
Date of Award: 9 October 2025

In the matter between:
N K Brandt
(Applicant/Employee)

and

Education Department of Western Cape
(Respondent/Employer)

Details of Hearing and Representation

This is the award in the arbitration between the applicant, Mr Brandt and the Education Department of the Western Cape, the respondent.
The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 186 (1)(b)(ii) of the Labour Relations Act, 66 of 1995 as amended (“the Act”), The award is issued in terms of section 138 (7) of the Act.
The arbitration hearing was held at the Western Cape education department offices in Cape Town on 18 June 2025, 7 August 2025 and 15 September 2025. The applicant appeared in person while the respondent was represented by Ms Krisston Smith, its labour relations officer.
At the conclusion of the hearing on 15 September 2025, the parties requested to file written arguments in place of oral submissions. This request was granted, and both parties submitted their arguments on 22 September 2025. In terms of section 138(7) of the Labour Relations Act, the fourteen days for issuing this arbitration award are accordingly calculated from 22 September 2025.
The proceedings were digitally recorded.
Background to the dispute
The dispute between the parties arose against the following background. The applicant completed his Bachelor of Science in Medical Bioscience at the University of the Western Cape on 20 March 2012, followed by a Postgraduate Certificate in Education in Health Education on 12 March 2013. While he was still pursuing his further studies, he entered into his first employment with the Western Cape Education Department. On 10 March 2014, he commenced a ten-day relief post at Littlewood Primary School, which ran until 20 March 2014. Shortly thereafter, from 1 April to 30 June 2014, he was appointed to a three-month fixed-term contract at Prince George Primary School.
On 1 January 2015, Mr. Brandt secured a permanent position at Webner Street Primary School in Ravensmead, Cape Town. During this time, he also completed a Bachelor of Education Honours in Education Studies, conferred on 17 March 2015. He remained in this permanent post until his resignation on 20 April 2018.
He returned to teaching on 15 July 2019, when he accepted a six-month contract at Sarepta High School, which ended on 31 December 2019. He was then engaged on a short contract at Aristea Primary School from 15 September to 26 October 2021. The following year, he was employed at Bellville South High School from the beginning of the first school term until 30 June 2022, and later in the year, he completed a one-month stint at St. Augustine’s.
A more extended period of employment began in January 2023, when Mr Brandt joined Parkvale Primary School. His appointment there was structured as consecutive fixed-term contracts, renewed each term, and covered the periods January to March, April to June, July to September, and October to December of 2023.
It is common cause that the respondent initiated a process to convert educators on fixed-term contracts to permanent posts. The purpose of this process was to ensure stability in schools and to provide employment security for contract educators. On 24 October 2023, Circular 0028/2023 was issued, granting condonation for the conversion of Post Level 1 educators, particularly those teaching outside their phase and subject area. The circular required eligible educators to submit an online application form by 3 November 2023, with successful appointments to take effect from 1 January 2024. The evidence indicates that the applicant submitted his application after this deadline. It further shows that his nomination details were only captured on the People Management Practices (PMP) system on 12 December 2023, and that the application was signed off by the circuit manager on 13 December 2023.
In January 2024, the applicant was reappointed at Parkvale on a fixed-term contract set to expire on 31 March 2024. This contract was subsequently extended until 31 December 2024 in terms of Circular 8 of 2024 to allow the conversion process to be finalised. On 4 November 2024, the applicant was notified in writing that his application for conversion had been unsuccessful on the basis that he was not suitably qualified for the phase in which he was teaching. The applicant, however, contended that he was not made aware of this outcome at the time.
After the expiry of his Parkvale contract on 31 December 2024, he commenced employment at Mitchell’s Heights Primary School on 1 February 2025 on a fixed-term contract that ran until 31 March 2025, and which was renewed from 1 April to 30 June 2025.
The applicant brought two separate disputes before the ELRC, both arising from the same set of facts. The first concerned an alleged unfair labour practice relating to conversion to permanent status. In that matter, the applicant argued that he ought to have been converted to a permanent position at his school and that he was unfairly denied this opportunity. The case was heard by another commissioner, who ultimately found in favour of the respondent.
The second and current dispute before me concerns an alleged unfair dismissal based on a reasonable expectation of renewal.
The issue/s to be decided
The issue to determine relates to whether the applicant had a reasonable expectation of permanent employment, and whether the failure to appoint him permanently following the expiry of his fixed-term contract on 31 December 2024 constituted a dismissal in terms of section 186 (b)(ii) of the Labour Relations Act.
As to the issue of relief, the applicant seeks an indefinite contract of employment and compensation.
Survey of evidence and arguments
Documentary evidence:
The parties had prepared an agreed bundle of documents, which was referred to from time to time during the course of the hearing. The agreed bundle of documents is marked ‘Bundle A’, consisting of 91 pages.
Applicant’s Evidence
The applicant’s expectation of indefinite employment is based on two central issues. First, the failure of the respondent to properly communicate the status of his conversion application under Circular 0028/2023. The second is that the expectation of permanency was created by the repeated renewal of his fixed-term contracts.
On the first issue, he relied on Circular 0028/2023, which made provision for the conversion of contract educators to permanent posts, including those teaching outside their qualified phase or subject. He testified that he met the criteria, as he was in service on 1 October 2023 and teaching out of phase at Parkvale Primary School. He stated that he completed the application via the online link before the 3 November 2023 deadline, but unlike some colleagues, he never received a confirmation email confirming submission. He explained that despite applying, he received no communication from the department throughout 2024 about the status of his conversion. According to him, the e-recruitment system reflected “not suitably qualified” from as early as 2 September 2024, but this was only communicated to him in a letter dated 4 November 2024. He criticised the letter as vague and misleading, arguing that the department should have informed him directly and clearly at an earlier stage.
The applicant further testified that he only later discovered that he had been appointed to a growth post, which is an additional position outside the permanent staff establishment and therefore ineligible for conversion. He argued that this information was never disclosed during his appointment, interview, or nomination process, and that the respondent’s failure to communicate his ineligibility upfront meant he was “set up for failure.” He added that his inclusion among the teachers identified by the respondent for conversion reinforced his belief that he was eligible and would be made permanent. He also stated that in 2015, he had been appointed to a permanent post at Webner Street Primary School despite teaching out of his qualified phase, and he regarded this as a precedent in his favour.
On the second issue, the applicant testified that the history of his contract renewals created a legitimate expectation of continued employment. He referred to his two-year tenure at Parkvale Primary School, during which his employment was rolled over through successive fixed-term contracts. Although he received notices in 2024 stating that his contract would end on 31 December, he argued that the series of fixed-term contracts created a reasonable expectation of permanent appointment. He added that he believed he was included in the 2025 staff establishment list submitted on 31 August 2024 and questioned why the principal did not inform him earlier that he was not on that list.
In conclusion, he stated that the instability of contract teaching was unfair, and that he is seeking an indefinite contract of employment, which he regards as meaningful and secure work.
Cross-examination
He acknowledged that throughout his two years of employment at Parkville Primary School, he had been on successive contracts with no guarantee of permanency. Nevertheless, he maintained that he applied for automatic conversion through the link in November 2023, but admitted he had no proof of this, unlike a colleague who kept screenshots.
Respondent’s evidence
The only witness called to testify was the principal of Parkville Primary School, Mr Gerald Hermanus. He has been the principal of Parkville Primary School since 1 October 2023. When he assumed duty, the applicant was already employed at the school in a Grade 5 teaching post under contract.
Mr Gerald Hermanus
He explained that the applicant’s post was not a permanent position but an additional “growth post” allocated to the school by the respondent based on learner numbers and systemic results. He stated that a growth post appears on the staff establishment form, but is not a permanent part of it and may be removed from one year to the next, which is what occurred for 2025. He emphasised that the department, not the school, determines whether a post is designated as “additional” or “growth.” He further testified that when he took over as principal in October 2023, he himself was not aware that the applicant’s post was a growth post, and he was uncertain whether the applicant knew this during 2024.
On the question of communication, he was clear that he held four meetings with contract teachers during 2024. During the meeting on 19 March 2024 and another on 20 September 2024, he informed contract teachers, including the applicant, that the school would submit applications for their conversion. He made it clear that there was no guarantee of permanency and that nobody can claim they will have a permanent post for the next year. The applications were submitted after the condonation granted for automatic conversions. He explained that he had been waiting for a formal communication from the department, as had been provided to successful candidates. When no such communication came for those who were unsuccessful, and with time running out, he consulted the district office. He was informed that the outcome of the process was that the applicant was found “not suitably qualified” and was advised to provide the information himself, which led to him issuing the letter of 4 November 2024.
Cross-examination
Responding to the applicant’s claim of expectation, he said he could not understand how the applicant could reasonably have believed he would be made permanent. He gave two reasons. Firstly, the applicant’s contract was set to end on 31 December 2024, and this had been clearly communicated on several occasions. Secondly, the applicant was deemed not suitably qualified for the phase he was teaching.
When suggested that the history of contract renewals created an expectation, he disagreed, stating that 2024 was markedly different from previous years due to the introduction of new circulars and processes, which placed greater emphasis on cost containment and stricter management of contract appointments. He referred in particular to Circular 0034 of 2022/2023, which stipulated that all post level one positions not filled through the conversion process by 31 March 2024 could thereafter only be filled through a formal recruitment process, and which further introduced cost containment measures effective from 1 April 2024.
In this context, he held meetings with contract teachers during 2024 to stress the finality of the termination date of 31 December 2024.
He emphasised that at no stage did the applicant approach him to challenge the termination date or to raise dissatisfaction with the outcome of the conversion process. On this basis, he concluded that no reasonable expectation of permanency could have arisen, given both the clarity of the notices issued and the stricter regulatory framework that applied in 2024.
Summary of written submissions.
Given the length of the parties’ written submissions, I will address the salient points in my analysis to avoid repeating the arguments both here and later in the discussion.
Analysis of evidence and arguments
The applicant referred two cases to the ELRC as stated earlier. The respondent raised the issue of estoppel, stating that the applicant’s conversion had already been dealt with in his unfair labour practice dispute, which he referred to the ELRC under case number ELRC1081-24/25WC. In Bouwer v City of Johannesburg and Another (JA 64/06) [2008] ZALAC 15 (23 December 2008), the Labour Appeal Court held that once a Court has finally determined an issue in a dispute, that determination may operate as an estoppel in subsequent proceedings between the same parties. This applies even where the subsequent proceedings are based on a different cause of action, provided the same issue is again involved and the right to relief depends on that issue.
In Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another [2012] ZASCA 28; 2014 (5) SA 297 (SCA) (28 March 2012), the Supreme Court of Appeal reaffirmed that under common law the requirements for res judicata are (a) the same parties, (b) the same cause of action, and (c) the same relief. The recognition of issue estoppel relaxes the latter two requirements, allowing a prior determination of an issue to preclude re-litigation even if the cause of action and relief differ. The Court stressed, however, that issue estoppel must be applied cautiously and, on a case-by-case basis, so as not to create unfairness or inequity in subsequent proceedings.
In NUMSA and Others v Kaefer Energy Projects (Pty) Ltd (JS 234/16); NUMSA obo Members v Amt Placements Services (Pty) Ltd and Others (JS 857/15); NUMSA obo Members v Murray and Roberts Ltd and Others (JS 88/16) [2023] ZALCJHB 98 (24 March 2023), the Labour Court, relying on Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others [2019] ZACC 41; 2020 (1) SA 327 (CC); 2020 (1) BCLR 1 (CC) (24 October 2019), confirmed that issue estoppel extends beyond res judicata by preventing parties from disputing facts or legal issues already essential to a prior final judgment. The Court emphasised that the key enquiry in applying issue estoppel is fairness to both parties. Accordingly, it applied estoppel to issues definitively decided in earlier arbitration but declined to do so where doing so would deprive employees of the opportunity to contest allegations central to the fairness of their dismissal.
In applying the legal principle, I find that although the two disputes arise from some of the same facts, they are not the same cause of action. One relates to an unfair labour practice concerning conversion, while the other concerns an alleged dismissal based on a reasonable expectation of renewal or permanency. The earlier dispute dealt with eligibility for conversion under departmental processes, whereas the present dispute requires an assessment of whether the respondent’s conduct created a reasonable expectation of continued employment. These are distinct issues, even if overlapping facts are considered in both. To bar the present claim on the basis of estoppel would deny the applicant the opportunity to have the fairness of his claim tested.
In terms of section 192 of the Labour Relations Act, read with section 186(1) (b)(ii), the employee bears the onus of showing that he or she reasonably expected the employer to retain him or her in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain him or her on less favourable terms, or did not offer to retain the employee. The employee discharges the onus by showing that he or she had a reasonable expectation that, despite the contract having come to an end by effluxion of time, the employer would retain him or her in employment on an indefinite basis. Once the employee has discharged the onus of showing that the employer has failed to retain him or her despite the existence of a reasonable expectation, the onus rests on the employer to show that the termination of the contract was for a fair reason.
The enquiry that needs to be conducted is whether the facts as presented by the applicant objectively establish that a dismissal had occurred when the respondent did not retain him on an indefinite employment contract.
The applicant submitted in his written argument that he had applied for conversion and that he had an expectation of permanency. The evidence shows that Circular 0028/2023 created a framework for automatic conversion, which was objectively capable of giving rise to an expectation of renewal or permanency. It was common cause that the circular extended the opportunity for conversion to post-level 1 educators employed on contract, including those teaching out of phase and subject, provided they had been employed since 1 October 2023.
The applicant initially appeared to meet the criteria for automatic conversion. However, this inclusion created only an appearance of eligibility and not actual compliance with the requirements. The circular expressly stated that automatic conversion would only apply to applications received by the respondent on or before the extended closing date of 3 November 2023. No evidence was presented that the applicant submitted his application by the stipulated closing date. It was common cause that his application was submitted after the deadline for automatic conversion, and as such, he fell outside the scope of automatic conversion.
The respondent’s delay in communicating the outcome of the applicant’s conversion application did not, objectively, create any legitimate expectation of permanent employment. The applicant’s late submission meant that he was not eligible for automatic conversion in terms of the circular.
Any further consideration for permanent appointment could only arise if the applicant met the substantive requirements of the circular. Since automatic conversion no longer applied, this meant that any consideration for conversion to permanent employment would only arise if he satisfied the substantive requirements of the circular. These included that he should not be teaching out of phase and subject, should not be appointed to a growth post, and that the post applied for should be aligned with his qualifications. The evidence established that the applicant did not meet these requirements, which rendered him ineligible for conversion.
On the evidence, it is clear that the applicant subjectively anticipated that his contract would be converted to permanency. However, he failed to adduce evidence pointing to the objective creation of such anticipation. Accordingly, while his personal expectation may have been genuine, it was not objectively reasonable in the circumstances.
As to the continuous renewal of his fixed-term contracts at Parkvale Primary School he submitted that this created a reasonable and legitimate expectation that he would be appointed permanently. His contract had been extended until 31 December 2024 for conversion, and he believed this reinforced his expectation of permanency. He further submitted that the history of repeated contract renewals over two years gave rise to a legitimate expectation of continued employment. While notices in 2024 had indicated that his contract would end on 31 December, the history of successive renewals, together with the submission of the 2025 staff establishment list, objectively supported his belief that his contract would continue. The applicant submits that these factors gave rise to a legitimate expectation of permanent employment, and that the respondent’s conduct, combined with procedural defects, rendered the termination of his employment an unfair dismissal.
In challenging the applicant’s claim, the respondent focused on the fact that the provision of Circular 8 of 2024 expressly stated that no further extension or renewal would be granted beyond that date. The Respondent further relied on legal authority to support its position that even after a contract was renewed eight times, no legitimate expectation arose. The respondent submitted that the applicant was fully aware of the fixed termination date and the absence of any promise of permanency, which was not disputed by the applicant.
Despite the fixed-and-temporary nature of the contract, the applicant was kept in employment for two consecutive years. While the fixed-term contract’s end date was 31 December 2024, it is arguable that where a fixed-term contract had been habitually extended with the result that the employee ended up working for many years will develop a sense of security of employment, subjectively expected to be appointed permanently, and in the applicant’s case, particularly as the final extension was linked to the conversion process. However, the contracts were consistently expressed to be temporary and for a fixed duration. This is further supported by the fact that, after 31 December 2024, the applicant was re-employed on another fixed-term contract at Mitchell’s Heights Primary School from 1 February to 31 March 2025, which was subsequently renewed until 30 June 2025. These circumstances confirm that he cannot reasonably expect to be appointed permanently.
In the totality of the evidence and the circumstances of this case, support the view, objectively speaking, that the applicant did not discharge the onus of proving that he had a reasonable expectation of permanent employment.
As a result, I make the following award.
Award
The applicant failed to discharge the onus of proving that the failure to appoint him permanently following the expiry of his fixed-term contract constituted a dismissal in terms of section 186 (b)(ii) of the Labour Relations Act.
The applicant’s case is dismissed.