15 August 2025 -ELRC1467-24/25NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL

IN THE MATTER BETWEEN

SAOU OBO IZELDA INGWERSEN APPLICANT

AND

NORTH WEST DEPARTMENT OF BASIC EDUCATION RESPONDENT

ARBITRATION AWARD

CASE NUMBER: ELRC 1467-24/25NW
DATE : 04 AUGUST 2025
PANELLIST : ZOLISWA TABA

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Website: www.elrc.org.za

Details and representation

This dispute between (“The Applicant”) and the Department of Education – Northwest (“The Respondent)” was arbitrated in terms of section 138 of the LRA read in line with the ELRC Constitution . Ms A. Gray, a representative from the trade union, SAOU appeared on behalf of the Applicant. The Respondent was represented by Mr M. Tatedi, an official from its Labour Relations section.

Issue to be decided

Dismissal was in dispute. The Applicant alleges that an expectation of renewal on a permanent basis was created. On the other hand, the Respondent alleges that the fixed term contract came to an end.
Parties signed pre- arb minutes and the issues in dispute were recorded as follows:
3.1. Whether or not there was a written or verbal notice of termination of employment given to the Applicant.
3.2. Whether or not there was a dismissal in terms of section 186(1)(b) of the LRA. If dismissal is found to exist, whether such dismissal was procedurally and substantively fair.
3.3. The Applicant sought compensation and the Respondent sought for the matter to be
dismissed.

Background to the issue

The Respondent is the Department of Education Northwest, where the Applicant is currently employed as a temporary educator. The Applicant had initially filed an unfair labour practice dispute where she sought payment of medical benefits. Such matter was withdrawn to pursue this matter on the same basis. This is clear from the dismissal referral form submitted by the Applicant in referring this matter seeking medical costs to be paid back to the educator.
Both parties presented witness testimony. The Applicant was the only one to testify for her case. The Respondent also called one witness in support of its case. All witnesses testified under oath. Bundle of documents were handed in by both parties and the documents were accepted as what they purport to be. The arbitration was heard on 26 June and 18 July 2025. The adjournment from the first seating was due to the witness of the Respondent experiencing online challenges. At the conclusion of the arbitration, parties requested to submit closing arguments in writing by no later than 25 July 2025. Closing arguments were indeed received as agreed.
The proceedings were manually and digitally recorded therefore what appears below constitutes a summary of the evidence adduced by the parties in so far as is relevant for the purpose of the arbitration. It is by no means a verbatim minute of what transpired in the course of the proceedings.

Survey of evidence and argument
The Applicant’s case
Witness: Izelda Ingwersen (“the Applicant”)

It was her testimony that she was currently an educator at Laerskool Goudkop. She worked in an SGB post from June 2022. She applied for a temporary departmental position which had been advertised. In January 2024, she was appointed in that temporary departmental post. Since she never received an appointment letter, she was not sure about the duration of the position. Since she was pregnant, on 21 January 2025, she had contacted Martin, a human resource official to check if everything was in order with her medical aid, GEMS. Martin advised her that since her employment was terminated on 31 December 2024, her medical aid benefits also terminated then. She went into early labour in February 2025 due to the stress after learning that her contract ended in December 2024 and her stay in the hospital was not covered by GEMS. GEMS had sent her a confirmation that her medical aid was terminated, and she had to pay over R 100 000.00 for medical costs as she was not covered by medical aid due to the termination.
In terms of page 8, clause 3.4 of the ELRC Collective agreement 2 of 2024, she expected her employment to be renewed as she was under the impression that she will be on the temporary post until it was converted to a permanent post. It had been a custom that educators would be on temporary posts for years until such positions were made permanent. She expected the same to be done with her as well. It was also a common practice for educators to complete annexure D, applying for appointment on a temporary post in February but upon such application being approved, they were back paid as from January and their appointment backdated to January. She completed her Annexure D with a start date of January 2025, but it was approved as from February 2025.
She conceded during cross examination that the principal had informed her in the beginning of the year that the position she was appointed in from January 2024 was for 1 year but maintained that the principal said such post could be converted to permanent. She understood 1 year as ending in December 2024. She confirmed that she was not employed by the Respondent in January 2025. She expected her contract to be renewed as from January 2025. She disputed receiving a written or verbal notice advising her that her contract would come to an end in December 2024. She understood that annexure D was completed to be appointed in a vacant post but that after 3 months one could be converted to permanent if the principal sent appropriate documents to the Respondent. She was not aware if there was no conversion the contract would come to an end. She confirmed that she worked in January 2025 and received a salary from the SGB. She was never made aware that her contract had ended until she made follow ups for medical benefits. She was informed that her contract was renewed in February 2025.

The Respondent’s case
Witness: Jaco Zevenster (“the principal”)

He was the principal at the school the Applicant was an educator at. The Applicant was employed by the Respondent on a temporary post in January 2024. Since the Applicant had been on an SGB post for about 3 to 4 years, when there was a vacant post, the school management team and the SGB decided to fill the position using the educators who were in the SGB posts. Annexure D was completed with the proposed start date of 01 February 2025 as advised by the Circuit Manager, Ms Makhabane.
When he called the Applicant to complete annexure D, he explained to her that the post was for 1 year, which is from January 2024 to December 2024. He found out this year that the circuit manager had in November 2024 sent a termination notice through WhatsApp reminding the principals to notify the educators who were on fixed contracts that their contracts were coming to an end in December 2024. He missed the message hence he did not pass the information to the Applicant. The Applicant was aware that her contract was coming to an end as he had told her in January that the contract was for 1 year.
Towards the end of the year, the school lost 6 posts which affected possible conversions. Late in January 2025, the school regained three posts hence he approached the circuit manager to fill the three posts. As per the circuit manager’s advice, annexure D forms were to be completed for 01 February 2025 as the appointment date. The reason that the Applicant was not appointed in January could have been due to the 6 posts which were lost. It had happened in the past that educators who were on fixed term contracts were allowed to work throughout the following year to January as the posts they were occupying were still available, hence they could be back paid.
He indicated during cross examination that the Applicant had expectations for renewal as normally the post she occupied was one of those which could be converted to permanent after three months. Due to the school losing posts, conversions were not done. He had informed the Applicant that the post may be converted to permanent. He did not remind the Applicant at the end of the year that her contract was coming to an end. It was not common to receive communication through WhatsApp hence he missed the notice of termination. Normally, a letter would be sent to the school and upon receiving it, he would inform the affected employee. Normally if one completed annexure D and such is submitted in January and the appointment was later, such person would be paid as from January if that post was available in January.
At re-examination, he confirmed that conversion was not automatic and that conversion could not take place when the school lost posts. He confirmed that for one to be converted, a list and documents of educators must be submitted to the Respondent by the principal. He did not submit any names for those legible for conversion to the district, he missed that. He did not remind the Applicant about her termination as he missed the WhatsApp notice. He confirmed that communication via WhatsApp had been in place for a while but due to him being in many WhatsApp groups, he missed the notice of termination. He confirmed that due to the loss of 6 posts, it was reasonable that there was no renewal in January but only in February as the posts were gained back late in January. Appointments were made only after annexure D had been approved; hence the Applicant’s appointment date was 01 February 2025.

Parties’ arguments

Lengthy arguments were filed which are not repeated in this award, but they were considered. Save to say that the Applicant argued that a case of reasonable expectation for renewal was proved and the relief sought was 12 months compensation to cover financial losses incurred and to address psychological impact. On the other hand, with reliance to court judgments , it was the Respondent ‘s argument that there was no dismissal as the initial fixed contract ended by operation of law and there was no reasonable expectations created by the Respondent.

Analysis of evidence and argument

The Applicant’s case pertains to an alleged dismissal in terms of section 186(1)(b) of the LRA. The Respondent on the other hand disputes existence of a dismissal, therefore dismissal is in dispute.
In terms of section 192 of the LRA , the onus to establish the existence of a dismissal is on the Applicant and the onus to prove that a dismissal was fair is on the Respondent once dismissal is established.
The provisions of section 186(1)(b) of the LRA were interpreted in City of Cape Town v IMATU obo Searle & Others case number C494/2016 as follows:
“[27] “Despite the amendment of s186(1)(b) by the addition of subsection (ii), the Applicant could not
have had a reasonable expectation of renewal of the fixed term contract as well as a reasonable
expectation of permanency. The two are mutually exclusive.”
It is therefore clear from the Searle (supra) case that an Applicant relying on section 186(1)(b) had to choose whether the case is about a reasonable expectation of renewal of a fixed term contract or reasonable expectation of permanency.
In this the matter, the Applicant’s case was all over. On one hand, the argument was about an expectation that the fixed term contract should have been renewed in January 2025 not from February 2025 resulting in her losing medical benefits. On the other hand, arguments were also made that the Applicant ought to have been retained as a permanent employee in that she ought to have been converted to a permanent employee after three months of her employment. Although the Searle judgment is clear that one could only choose one path to argue, the Applicant argued section 186(1)(b) of the LRA in general. Therefore, it is important to deal with both arguments separately.
The criteria to determine existence of a reasonable expectation was set out by the court in De Milander v Minister of Executive Council for the Department of Finance: Eastern Cape and others . The LAC held that it was first necessary to determine whether the employee in fact expected her contract to be renewed (which is the subjective element); and if the employee did have such an expectation, whether, considering all the facts, that expectation was reasonable (which was the objective element). The LAC held that whether an expectation was reasonable will depend on whether it was actually and genuinely entertained.

Reasonable expectation to be converted to a permanent

It was the Applicant’s testimony that since the principal informed her that the post she was to be temporarily appointed into, may be made permanent, such created a reasonable expectation to be converted. The principal indeed testified that he had informed the Applicant that she may be converted after three months. The key word here is “may”, which simply means such conversion could happen or could not happen. Even if it were to be said that the principal told the Applicant that she “will” be converted, it must be noted that the principal does not have any authority to make undertakings of permanent employment for educators who are to be employed by the Respondent. Clause 3.3 of the ELRC Collective Agreement 2 of 2024 (henceforth referred to as “the Collective Agreement”) clearly requires such undertakings to be given by a person with requisite authority. The Applicant did not submit or refer to any proof that such authority was given to the principal.
In terms of the Collective Agreement, a temporary educator who occupies a funded, vacant, substance post may be converted to a permanent educator if he/she meets certain requirements and proper procedures were followed. It is common cause that the Applicant was a temporary educator who occupied a funded, vacant substantive post in 2024. Clause 4 of the Collective Agreement provides requirements to be met and procedures to follow for conversion to take place. It is clear from the Collective Agreement that for conversion to be successful, the school principal had to make submissions in writing to the district office about the profile of the post in question with all relevant information about the temporary educator. Furthermore, it was a requirement that the SGB together with the principal had to submit written confirmation to the district office confirming that there were no other educators who could be appointed in the post .
It was not disputed that conversion was not an automatic process after three months. For conversion to be considered, written submissions from both the principal and the SGB were a crucial requirement. In this matter, the principal testified that there were no written submissions he had made to the district office about the post in question and about converting the Applicant, this evidence remained undisputed.
The mere conversation between the principal, who has no authority to bind the Respondent and the Applicant about a possible conversion after three months cannot create a reasonable expectation for conversion, moreover, conversion is not an automatic process.

Reasonable expectation for the fixed contract to be renewed
Did the Applicant expect the contract to be renewed?

The Applicant confirmed that she was informed that her contract was for a year. It is therefore clear that she was aware that her contract will end in December 2024. In her testimony, the Applicant indicated that she expected her contract to be renewed as it had happened in the past that temporary educators had their contracts renewed. Based on this testimony, the Applicant hoped that her contract would be renewed the same way as it was done with other educators she referred to. Whether the hope or expectation was reasonable and whether it was created by the Respondent is what needs to be decided next.

Was the expectation reasonable and was it created by the Respondent?

It is common cause that the Applicant’s contract was renewed as from February 2025. It is common cause that in January 2025, she was an employee of the SGB as she was paid by the SGB. Her argument is that she expected her contract to be renewed from January 2025. This argument is unreasonable as in January 2025, she was working for the SGB. She was aware that the temporary position she had been appointed into was only for a year, ending in December 2024, hence she worked for the SGB in January 2025.
The Applicant further indicated that the expectation to renew in January was created by what the Respondent had previously done with other educators. It was the Applicant’s testimony that since other educators’ contracts in the past were renewed from January, she expected hers to be renewed from January as well. Although the Applicant relied on what was allegedly done previously, she failed to submit details of those educators she referred to. Furthermore, she failed to testify on the terms and conditions which existed relating to those educators and how they were similar to her situation. Nowhere in her testimony did she indicate that someone with authority to bind the Respondent had informed her that her contract will be renewed in January.
The principal testified that the renewal of contracts was based on available posts. His testimony that the school had lost six posts towards the end of the year was not disputed. Furthermore, the principal’s testimony that the school only gained back three posts towards the end of January 2025 was not disputed. The Applicant further did not dispute the principal’s testimony that the annexure D she completed recorded the proposed start date as 01 February 2025. In terms of the principal’s testimony, he approached the District Director late in January after the posts were reinstated to engage on the issue of renewals, hence the start date became 01 February 2025. No evidence was put before me that the posts which were lost in 2024 were regained from 01 January 2025. The undisputed evidence is that they were regained late January hence the renewal was in February 2025.
The Applicant must appreciate that the principal is not the Respondent and not clothed with the authority to appoint educators appointed in terms of the EEA . It is not the Applicant’s case that the post in question was a school governing body post and that the governing body, of which the principal is part of, created an expectation of renewal. Had that been the case, the dispute would have been referred to the CCMA .
In terms of section 6 (1)(b) of the EEA, the Head of the Department (“the HOD”) in a Province is the one with authority to appoint an educator. No evidence was led before me indicating that the HOD or any official with delegated powers had at any point promised the Applicant that her contract would be renewed from January 2025. Even if it were to be accepted that the principal had told the Applicant that her contract would be renewed in January 2025, such promise could not be interpreted to mean that the Respondent created an expectation as the principal does not have authority to appoint educators or to bind the Respondent. What must be appreciated is that for a dispute to fall under section 186(1)(b), an expectation should have been created by the Respondent. In this case, no proof or evidence was led that the person who has authority to bind the Respondent created such expectation.
Even if it were to be said that the principal had authority to bind the Respondent, which he does not have, and had promised the Applicant that her contract will be renewed in January, such promise would have been a bona fide error. I say this as the undisputed testimony was that the school lost posts and such posts were only reinstated late in January 2025. In the absence of available posts in early January, the Applicant could not have been appointed on a temporary post which was non-existent. The principle that a bona fide error by an employer could not give an employee reasonable expectation of extension or of renewal was emphasised by the Labour Appeal Court in IMATU and others v City of Johannesburg Metropolitan Municipality and others.

Notice

Although it is advisable for employers to give notice of termination regarding fixed term contracts, where parties are clear on the date the fixed term contract ends, the employer is not legally required to give notice of termination.
In this case, evidence was that the Applicant was informed that her contract which she was offered in January 2024 was for a year. The Applicant is not a lay person who did not understand that a year meant that her contract is from January 2024 until December 2024. The position is that a fixed term contract is a kind of employment contract which does not require notice of termination except where the parties have agreed that notice may be given. No evidence was led by the Applicant that there was any agreement that the Respondent will still issue a notice of termination despite a clear communication that her contract was only for a year. Furthermore, although the Respondent in this case was not legally bound to issue a termination notice, it was not disputed that such notice had been issued by the Respondent in November and sent to the principal. The principal confirmed this but indicated that he omitted to check the communication from the Respondent. The Respondent cannot be faulted as it did send communication in terms of its procedures.

Medical costs

Although the issue of alleged dismissal has not much to do with medical benefits, since it was argued in this case as a loss linked to the alleged unfair dismissal, I must address the issue briefly in this award. It must be noted that the medical aid the Applicant was a member of is only reserved for government employees and was linked to her fixed term contract. It was her responsibility to have made a follow up with her medical aid before December 2024 to check if she would be covered after December 2024 as she was aware that she was appointed as a temporary educator for only a year. Medical costs incurred in January 2025, where there was no employer and employee relationship between herself and the Respondent could not be claimed from the Respondent. Evidence was led that the Applicant worked for the SGB in January 2025. If there is any claim to be made, such claim may be better directed to those she worked for in January 2025.
Based on the evidence before me, evidence points that the Applicant expected her contract to be renewed, but this expectation was her own belief rather than a guarantee or an expectation created by the Respondent.
The Applicant failed to establish that the Respondent created a reasonable expectation that her employment would be renewed from January 2025 or that she should have been appointed on a permanent nature. As a result, the Applicant failed to discharge onus resting on her to establish existence of a dismissal in terms of section 186(1)(b) of the LRA.

Award