15 May 2026 – ELRC1182-25-26KZN

AT THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN VRYHEID

In the matter between
K P MPUNGOSE Applicant
and
MTHASHANA TVET COLLEGE Respondent:

Abitrator: AS Dorasamy
CASE NO : ELRC1182-25-26 KZN
HEARD : 20 APRIL 2026
DATE OF AWARD : 14 MAY 2026
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair
conduct related ALLEGED DISMISSAL

ARBITRATION AWARD
1.1 PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1.1.1 This matter was set down for arbitration on 19 March 2026 and was postponed to 20 April 2026. The matter was heard at Mthashana TVET College in Vryheid under the auspices of the Education Labour Relations Council (ELRC). The Applicant represented herself and Ms B Z Ndlovu represented the Respondent.
1.2 THE ISSUE IN DISPUTE
1.2.1 I am required to determine whether the Applicant was dismissed, or whether her contract came to an end due to the effluxion of time.
1.3 THE BACKGROUND TO THE DISPUTE
1.3.1 The Applicant was on a fixed-term contract and when it ended her contract was not renewed.
1.4 SUMMARY OF EVIDENCE AND ARGUMENT
1.4.1 EVIDENCE ON BEHALF OF THE APPLICANT
1.4.1.1 The Applicant stated that her contract was not renewed and claims an unfair dismissal.
INTRODUCTION AND APPROACH
2.1 This Replying Submission is filed in response to the Respondent’s Answering Submission and annexures (A to H).
2.2 This dispute concerns whether the Applicant’s fixed-term contract, although expressed to terminate on a specified date (31 December 2025), gave rise to a reasonable expectation of renewal as contemplated in section 186(1)(b) of the Labour Relations Act, No. 66 of 1995 (as amended) (LRA).
2.3 The Respondent approaches the matter as a mere expiry of a fixed-term contract. This is a misdirection in law. It is well established that the existence of a termination date does not preclude a finding of dismissal where the surrounding circumstances create a reasonable expectation of renewal.
2.4 The enquiry is therefore twofold: namely whether a reasonable expectation of renewal existed; and secondly whether the Respondent has discharged the onus of showing that the non-renewal was fair.
2.5 The Applicant has carefully considered the Respondent’s submission, specifically the section titled “Reasons for Non-Renewal Contract Evidence” and Annexures A to H.
2.6 The Respondent fails to engage with this enquiry. Instead, its answering submission is dominated by allegations that the Applicant’s “professional conduct” has deteriorated and that the relationship became “unbearable”. These allegations are largely irrelevant to the determination of reasonable expectation, are unsupported by objective evidence, and are in material respect contradicted by the Respondent’s own documentation.
2.7 The Respondent’s approach reflects an attempt to retrospectively justify a decision already taken, rather than to meaningfully rebut the Applicant’s case. This is evident from the shifting and inconsistent reasons advanced for the non-renewal.
2.8 It is common cause that the Applicant’s contract was repeatedly renewed from 2020 to 2025. Significantly, the Respondent renewed the Applicant’s contract for 2025 despite relying on disciplinary issues arising in 2024. This constitutes a waiver of reliance on those issues as a basis to deny a reasonable expectation.
2.9 The Respondent now advances multiple and inconsistent reasons for the non-renewal, including misconduct, absenteeism, operational requirements, enrolment considerations, and a purported desire “to avoid continuous discipline action in 2026”. These differ materially from the stated reason in the undated notice of non-renewal received on 11 December 2025, cited as “ill health which has rendered you incapable of performing assigned duties”, i.e., incapacity (Applicant’s Bundle page 19).
2.10 This inconsistency is not incidental. It reflects the absence of a coherent and contemporaneous basis for the decision, and points instead to a post-hoc rationalisation.
2.11 The Applicant further records that this matter is not “academic”. The non-renewal resulted in the loss of her livelihood and has ongoing financial consequences. The dispute must therefore be determined on its merits.
ISSUES FOR DETERMINATION
3.1 Whether the Applicant had a reasonable expectation that her fixed-term contract would be renewed.
3.2 Whether the non-renewal constitutes a dismissal in terms of section 186(1)(b) of the LRA.
3.3 If so, whether such dismissal was procedurally and substantively fair.
3.4 The Applicant submits that these issues are central to the dispute and require determination on the facts and the applicable legal principles.
LEGAL FRAMEWORK
4.1 Section 186(1)(b) of the LRA provides that dismissal includes the failure to renew a fixed-term contract where an employee had a reasonable expectation of renewal.
4.2 The test is objective and considers the employer’s conduct.
4.3 In SA Post Office v Mampeule (2010), it was held that an employer cannot rely on expiry to avoid fairness requirements.
4.4 In Dierks v University of South Africa (1999), the Court held that repeated renewals may create a legitimate expectation of further renewal.
OBJECTIVE INDICATORS OF REASONABLE EXPECTATION
5.1 The Applicant relies on the following objective indicators, which cumulatively created a reasonable expectation of renewal:
5.1.1 Repeated/consistent renewals from 2020–2025 (Applicant’s Bundle page 18).
5.1.2 Attendance of a two-day, fully paid Mathematics content workshop in Pietermaritzburg in August 2025 (Professional Development) (Applicant’s Bundle pages 31–40).
5.1.3 Award of a 2026 bursary to study Advanced Diploma in TVET Education in September 2025 (Professional Investment) (Applicant’s Bundle pages 41–47 / Respondent’s Bundle page 4).
5.1.4 A formal salary deduction instalment plan implemented from October 2025 extending to March 2026 (Applicant’s Bundle pages 48–49).
5.1.5 Allocation of a 2026 teaching workload (five classes) in November 2025 (Applicant’s Bundle pages 50–59).
5.1.6 January 2026 meeting proposal by the Deputy Principal to address misunderstandings, sent in November 2025 (Applicant’s Bundle pages 60–61).
5.1.7 Verbal assurance by the Acting Campus Manager on the closing day, 11 December 2025 (Applicant’s Bundle page 64).
5.2 Undisputed facts: The Respondent has failed to rebut the Applicant’s case on these seven pillars of reasonable expectation. In a documentary process, these must be accepted as admitted and undisputed facts that signal a clear intent of continuity.
FAILURE TO REBUT EXPECTATION
6.1 The Respondent’s submission entirely fails to engage with or rebut the objective indicators cited above.
6.2 Instead, the Respondent relies on anecdotal allegations that do not address the legal enquiry under section 186(1)(b).
6.3 The Respondent also relies on two witness statements and annexures that largely repeat allegations of misconduct and absenteeism. These statements do not address the issue of reasonable expectation.
6.4 The Respondent’s reliance on such material does not advance its case.
6.5 The Ghost Witnesses: It is significant that the Respondent previously sought to postpone this matter until July, claiming that “lecturers” were essential witnesses who would be unavailable due to college holidays. However, in the Respondent’s submission, not a single statement from these alleged lecturer-witnesses has been produced (Applicant’s Annexure RA). This was a delaying tactic.
6.6 It is a well-established principle that a party with a meritorious and robust defence would not seek to delay or postpone the resolution of a matter on multiple occasions.
6.7 The Respondent’s persistent stalling and reliance on “ghost witnesses” serves as an adverse inference that their defence is substantively weak and lacks credible evidence.
6.8 The Respondent resorted to a campaign of character assassination, resurrecting a closed 2024 disciplinary matter and fabricating stories about the Applicant’s conduct without tangible evidence in a desperate attempt to justify their bad-faith actions and lack of defence.
SHIFTING AND INCONSISTENT REASONS FOR NON-RENEWAL AND REBUTTAL OF RESPONDENT’S SUBMISSION
7.1 The notice of non-renewal issued to the Applicant relies solely on incapacity (ill health) (Applicant’s Bundle page 19).
7.2 The Fatal Omission: It is significant that, under the Respondent’s own heading “Reasons for Non-Renewal Contract Evidence”, the Respondent fails to cite or provide any evidence for incapacity (ill health).
7.3 By failing to address the reason stated in the termination notice, the Respondent has effectively abandoned its original defence and is now attempting to “reason-shop” through misconduct and operational claims.
7.4 Furthermore, the Respondent conflates these grounds without following the required procedures for any, rendering the dismissal procedurally void.
7.5 The Respondent’s attempt to rely on multiple and inconsistent reasons after the fact constitutes impermissible justification ex post facto.
7.6 The Respondent is bound by the reason communicated at the time of non-renewal. Its failure to establish that reason, coupled with the introduction of alternative and contradictory explanations, renders its case unsustainable.
7.7 The Respondent devotes a substantial portion of its submission to allegations of misconduct, absenteeism, and character-based criticisms of the Applicant.
7.8 These allegations are largely irrelevant to the issue for determination, which is whether the Applicant had a reasonable expectation of renewal in terms of section 186(1)(b).
7.9 To the extent that such allegations relate to misconduct, they were the subject of a concluded disciplinary process and cannot be re-litigated in these proceedings.
7.10 The Respondent’s reliance on these matters amounts to an attempt to justify the non-renewal after the fact, rather than addressing the central legal question.
CONTRADICTIONS, INCONSISTENCIES AND CREDIBILITY AND REBUTTAL OF RESPONDENT’S SUBMISSION
8.1 Pre-Determination of the Outcome
8.1.1 The Respondent alleges that the non-renewal decision followed the outcome of the Applicant’s appeal. This is factually incorrect.
8.1.2 The documentary record reflects that the notice of non-renewal was issued to the Applicant on 11 December 2025 (Applicant’s Bundle page 92), whereas the appeal outcome, dated 09 December 2025, was only communicated to the Applicant on 12 December 2025.
8.1.3 The sequence of events demonstrates that the decision not to renew the Applicant’s contract was taken prior to the communication of the appeal outcome.
8.1.4 This renders the appeal process illusory and confirms that the outcome was pre-determined, which is inconsistent with the principles of procedural fairness.
8.2 Unexplained Alteration of the Appeal Outcome
8.2.1 The appeal outcome document (Applicant’s Bundle pages 93–94) reflects the inclusion of the term “incapacity” in its heading, despite the underlying disciplinary process relating to misconduct.
8.2.2 There is no explanation provided by the Respondent for the insertion of “incapacity” into the appeal outcome.
8.2.3 This alteration is material. It suggests an attempt to retrospectively align the appeal outcome with the reason cited in the notice of non-renewal, namely incapacity.
8.2.4 Such post hoc modification undermines the integrity of the Respondent’s version and raises serious concerns regarding the reliability of its documentary evidence.
8.3 Contradiction Regarding the Employment Relationship
8.3.1 The Respondent alleges that the employment relationship had irretrievably broken down.
8.3.2 However, an employment letter issued to the Applicant in September 2025 records that the relationship was “very good” (Applicant’s Bundle page 18).
8.3.3 This contemporaneous documentary evidence directly contradicts the Respondent’s later assertion of a breakdown in trust.
8.3.4 No explanation is provided for this contradiction.
8.4 Contradiction regarding handing back of laptops
8.4.1 The Respondent asserts that lecturers were requested to return laptops on the closing day.
8.4.2 This is contradicted by the statement of the Acting Campus Manager (Respondent’s Annexure H) that such requests were made prior to the closing day.
8.4.3 The inconsistency further undermines the reliability of the Respondent’s version.
8.5 Exaggerated and Incorrect Absenteeism Allegations
8.5.1 The Respondent alleges that the Applicant “developed a trend” of absenteeism during December, citing specific dates across 2023, 2024 and 2025.
8.5.2 These allegations are demonstrably inaccurate.
8.5.3 In respect of December 2024, the college closed on 11 December 2024, rendering any alleged absences beyond that date (12 and 13 December 2024) factually impossible.
8.5.4 In respect of 11 December 2025, the Applicant was not absent, a fact consistent with the Respondent’s version that the Applicant attended a meeting on that date (Respondent’s Bundle Annexure H).
8.5.5 The Respondent fails to produce any verified attendance register or corroborating evidence to support these allegations.
8.5.6 In the absence of verified records, these allegations must be regarded as exaggerated and unreliable.
8.5.7 The Respondent incorrectly attributes Annexure H to the Acting Principal, whereas the document is in fact authored by the Acting Campus Manager. This further reflects a lack of accuracy in the Respondent’s presentation of evidence.
8.6 Reliance on Unverified Leave Records
8.6.1 The Respondent relies heavily on leave schedules to support its case.
8.6.2 However, the Applicant’s leave records were not verified or checked as of 23 January 2026, as reflected in the documentation (Applicant’s Bundle pages 107-108).
8.6.3 The Respondent provides no explanation for its reliance on unverified records.
8.6.4 The Respondent relies on leave schedules, yet fails to demonstrate:
8.6.4.1 Whether such leave fell within permissible statutory limits.
8.6.4.2 Whether the leave was approved.
8.6.4.3 Whether any corrective or performance management process was initiated in response.
8.6.5 This omission materially undermines the evidentiary value of the leave records relied upon.
8.7 Rebuttal to Allegations of “Always on Leave”
8.7.1 The Respondent’s claim that the Applicant is “always on leave” is a reckless and careless assertion that is entirely unsupported by comparative data. The Applicant submits the following:
8.7.2 Statutory Rights: Leave is a statutory right under the Basic Conditions of Employment Act (BCEA) and when properly applied for and approved, cannot in itself constitute misconduct or incapacity.
8.7.3 The Respondent has failed to provide any evidence that the Applicant’s leave exceeded her legal entitlement or was disproportionate compared to other staff members.
8.7.4 Lack of Evidence: No new disciplinary records, warnings for absenteeism, or leave-tracking comparisons for 2025 have been produced. In the absence of such records, this claim must be dismissed as unsubstantiated hearsay.
8.7.5 The Results Contradict the Claim: The Respondent’s suggestion that students “studied on their own” to achieve their results is baseless and an insult to the pedagogical process. It is an established educational principle that a lecturer’s performance is observed through their students’ results. The high pass rates achieved by the Applicant’s students (Applicant’s Bundle pages 76-77) are a direct result of consistent instruction and prove that no “gross absenteeism” occurred.
8.7.6 In the absence of verified records and proper contextual analysis, the assertion that the Applicant was “always on leave” must be regarded as exaggerated and lacking probative value.
8.8 The Respondent’s reliance on petty, personal attacks and unsubstantiated hearsay regarding leave and conduct while suppressing documentary evidence of a continuing workload proves that there is no objective defence for the unfair dismissal of a lecturer who held a reasonable expectation of renewal.
8.9 Misrepresentation of the Employee Assistance Programme (EAP)
8.9.1 The Respondent asserts that the Applicant was referred to the Employee Assistance Programme (EAP) on 27 July 2024 (Saturday) and failed to follow through. This assertion is incorrect.
8.9.2 The EAP documentation in the Respondent’s own bundle reflects that the form was signed by the former Campus Manager on 25 July 2024 and officially stamped on 13 August 2024 (Respondent’s Bundle FIRST page 14 as there are two page 14s).
8.9.3 Furthermore, the Applicant initiated the EAP process herself due to work-related stress and was not referred by the employer as alleged.
8.9.4 The Respondent’s misstatement of both the origin and timeline of the EAP process further undermines the reliability of its version.
8.10 Documentary Irregularities in the Respondent’s Bundle
8.10.1 The Respondent’s bundle contains material irregularities, including:
8.10.1.1 Duplicate pagination because of copying and pasting of a previous bundle used for a 2024 disciplinary matter.
8.10.1.2 Misallocation of pages belonging to the Applicant’s bundle, page 84 and page 87.
8.10.1.3 Inconsistent document sequencing.
8.10.2 These irregularities affect the integrity and reliability of the Respondent’s documentary evidence.
8.11 Respondent’s Inconsistency with Labour Relations Act
8.11.1 The Respondent submits that it elected not to renew the contract “in order to avoid potential future disciplinary issues”. This reasoning is speculative and impermissible. An employer cannot rely on anticipated future conduct to justify non-renewal, particularly where existing processes are available to address any concerns.
8.11.2 The Respondent’s own version demonstrates that it elected not to pursue disciplinary process and instead relied on non-renewal. This is inconsistent with the principles of fairness set out in Schedule 8 of the Labour Relations Act.
8.11.3 The Respondent asserts that there was insufficient medical evidence to approve applicant’s short Temporary Incapacity Leave applications (Applicant’s Bundle page 84) yet relies on incapacity as the reason stated in the notice of non-renewal. This is contradictory. If incapacity was relied upon, the Respondent was required to follow a fair incapacity process in terms of Schedule 8 of the Labour Relations Act, which it failed to do.
8.11.4 The non-renewal was therefore not a neutral expiry, but a substitute for dismissal.
8.12 Respondent’s Violation of Leave Policy and Procedural Irregularity
8.12.1 The Respondent is silent on the Applicant’s short Temporary Incapacity Leave applications, which were not processed or finalised by HR as of 23 January 2026. They still had blank sections which were to be completed by HR prior to the approval/disapproval of the application (Applicant’s Bundle p 104-105 & 116-117).
8.12.2 This omission is material, as it displays the Respondent’s bad faith for converting these applications to unpaid leave and subsequently deducted a lump sum based on the forms which were incomplete and unverified.
8.12.3 The Respondent processed salary deductions for the 09th and 10th of December 2025 prior to the Applicant submitting the relevant leave application form on the 11th of December 2025 (Applicant’s Bundle page 108 & page 87). This is a direct violation of a leave policy. These deductions were communicated to the Applicant on the eve of the notice of non-renewal.
8.12.4 The Respondent’s unilateral cancellation of an agreed deduction plan which extended until March 2026 (Applicant’s Bundle page 48) and the subsequent R13356 lump sum deduction as reflected on the Applicant’s December 2025 pay slip (Applicant’s Bundle page 129) constitutes gross financial victimization and proves a premeditated intent to sever the employment in bad faith.
RESPONSE TO SPECIFIC ANNEXURES
9.1 The Applicant notes that three college officials (out of five) who were subpoenaed (Applicant’s Bundle p130-135) to provide relevant evidence did not produce statements and most of the subpoenaed documents.
9.2 Annexure H – Acting Campus Manager’s Statement (Subpoenaed Witness)
9.2.1 Annexure H is presented as justification for the non-renewal. However, a proper analysis reveals material inconsistencies, unsupported allegations, and contradictions that undermine the Respondent’s version.
9.2.2 Admission of Premeditation: The witness, Acting Campus Manager, states that she became “tired, frustrated, despondent and desperate” and approached the central office to seek advice regarding the non-renewal of Applicant’s contract, confirming the decision was premeditated and personal.
9.2.3 This constitutes an admission that:
9.2.3.1 Concerns were not formally addressed with the Applicant.
9.2.3.2 No structured process was followed.
9.2.3.3 The matter was escalated externally without affording the Applicant an opportunity to respond.
9.2.4 Non-compliance to a subpoena: Notably, when subpoenaed to provide recommendations for 2026 (Applicant’s Bundle page 133), no such documentation was disclosed. The Applicant submits this failure is an attempt to suppress evidence of 2026 planning that included the Applicant.
9.2.5 This stands in direct contradiction to the statement that she recommended all contract lecturers (Primary audio recording and Applicant’s Bundle page 64), thereby further undermining the credibility of her version.
9.2.6 Contradictory Position on Expectation: The witness, Acting Campus Manager dismisses the Applicant’s documentary evidence of expectation by stating that such documents were merely “operational” and requested long before renewal decisions.
9.2.7 However, she fails to specify:
9.2.7.1 When renewal considerations are made.
9.2.7.2 What criteria are applied.
9.2.7.3 Whether employees are informed or consulted.
9.2.8 This lack of transparency reinforces, rather than negates, the Applicant’s reasonable expectation.
9.2.9 Training and Workshop Contradiction: The Respondent states that the Applicant was sent to a mathematics workshop “to motivate” her.
9.2.9.1 This is inconsistent with the Respondent’s case that the Applicant was unsuitable for continued employment.
9.2.9.2 Investment in training is indicative of an intention to retain, not terminate an employee.
9.2.10 Workload and Enrolment Contradictions: The witness, Acting Campus Manager states that the college did not meet Level 2 enrolment targets and that this resulted in a reduction in Mathematics. No enrolment figures or supporting documentation are provided to substantiate the alleged reduction.
9.2.10.1 This assertion is inconsistent, unsupported, and does not provide a credible basis for the non-renewal and contradicts with the documentary evidence (Applicant’s Bundle pages 50-59).
9.2.10.2 The draft workload allocation reflects that the Applicant was allocated mathematics in Level 3 and Level 4 only, and not Level 2.
9.2.10.3 The alleged shortfall in Level 2 enrolment therefore could not have directly affected the Applicant’s allocated workload, as she was not assigned Level 2 teaching duties.
9.2.10.4 Furthermore, the interim timetable obtained by the Applicant from a current student in January 2026 reflects that Mathematics periods in Level 2 and Level 3 remained unallocated or required coverage (Applicant’s Bundle pages 123-124), indicating that there was still an operational need for lecturing capacity.
9.2.10.5 The witness, Acting Campus Manager, also acknowledges that other lecturers were accommodated and that a replacement was later appointed, which further contradicts the assertion that workload had diminished.
9.2.10.6 She further contends that the 2026 workload allocation was merely a draft. However, in the context of section 186(1)(b), the relevant enquiry is not the Respondent’s internal characterization of the document, but the objective signal conveyed to the Applicant. The allocation of lecturing duties and inclusion in academic planning are factors capable of creating a reasonable expectation of renewal.
9.2.11 Admission of External Instruction and Selective Application: The witness, Acting Campus Manager, states that the department instructed colleges to prioritize permanent staff over contract lecturers.
9.2.11.1 No documentary proof or circular or memorandum from the DHET is provided to support this alleged instruction.
9.2.11.2 This statement amounts to an admission that:
9.2.11.2.1 The decision was influenced by external considerations; and
9.2.11.2.2 The Applicant was effectively displaced in favour of other lecturers.
9.2.11.3 This contradicts the Respondent’s reliance on incapacity and misconduct as the reasons for non-renewal.
9.2.12 Contradiction on Incapacity: The Acting Campus Manager confirms that the Applicant was allocated invigilation duties and marking responsibilities.
9.2.12.1 This is inconsistent with the Respondent’s reliance on incapacity (ill health).
9.2.12.2 The same statement then attempts to redefine incapacity as poor performance.
9.2.12.3 This conflation of incapacity and performance reflects a misunderstanding of the applicable legal framework and further demonstrates shifting justification.
9.2.13 Performance Allegations: The allegation that the Applicant “rarely met the 60% benchmark” is unsupported by objective data.
9.2.13.1 The Applicant’s results reflect improvement over time and most classes had obtained above 60% pass rate not only in 2025 (Applicant’s Bundle pages 76-77) and the applicant received recognition for performance in 2024 (certificates of achievement) (Applicant’s Annexure RB).
9.2.14 Mischaracterization of Conduct: The witness, Acting Campus Manager, alleges that the Applicant volunteered to teach during holidays for financial gain.
9.2.14.1 This interpretation is speculative and disregards the Applicant’s role in supporting students.
9.2.15 Rebuttal of “Version 2” and Syllabus Coverage Allegations
9.2.15.1 The allegation that the Applicant failed to complete the syllabus is not supported by evidence.
9.2.15.2 The Applicant notes that the witness’s claim regarding “Version 2” assessments is a deliberate factual distortion. The witness is well aware of the fact that repeaters (students) are given version 2 tasks due to provincial task dates clashes not because the students were not prepared for version 1.
9.2.15.3 The Applicant has produced Annexure RC (WhatsApp screenshots) as objective evidence to prove that these issues were provincial in nature, yet the Respondent has failed to provide any documentary proof to the contrary.
9.2.15.4 The witness has failed to:
9.2.15.4.1 Specify the frequency or the specific dates of these “Version 2” assessments.
9.2.15.4.2 Provide any comparative data to show that the Applicant’s classes used these versions more than any other lecturer; and
9.2.15.4.3 Produce any disciplinary records or emails sent to the Applicant at the time these assessments occurred. In accordance with the principle that he who alleges must prove, these vague assertions without data must be dismissed.
9.2.15.5 Evidence of Provincial Systemic Realities
9.2.15.5.1 As evidenced by Annexure RC (Recent WhatsApp Discussion), the academic cycle is subject to various operational realities. Current discussions among lecturers across the province confirm that many are presently modifying assessment scopes because the planned work could not be covered. Examples of such variables include:
9.2.15.5.2 Prolonged registration periods; and
9.2.15.5.3 Unplanned/Extra College holidays.
9.2.15.5.4 The witness is well aware that these variables affect the entire department. To selectively characterize these common examples as the Applicant’s personal performance failure while ignoring that other lecturers face the same challenges is a clear act of bad faith.
9.2.16 Inflated Absenteeism Figures: The witness, Acting Campus Manager, alleges that the Applicant was absent for 42 days in 2025 and absent from 45 morning briefings.
9.2.16.1 These figures are not supported by reliable evidence. The leave schedule reflects duplicated dates inflating the total, and no corresponding leave application forms or verified attendance registers are provided.
9.2.16.2 In the absence of corroborating documentation, these figures must be treated with caution.
9.2.17 Rebuttal to Claims of “Unprofessional Conduct”: The witness’s allegations regarding the Applicant’s conduct are directly contradicted by the Performance Assessment Instrument (Applicant’s Bundle, page 80), which confirms a “Very Good” rating in Human Relations. Because the Respondent has failed to produce any new disciplinary records, warnings, or contemporary emails in 2025 to support these claims, they must be treated as unsubstantiated hearsay manufactured solely for the purpose of this dispute.
9.2.17.1 In accordance with the principle that he who alleges must prove, this claim lacking any documentary evidence must be dismissed as unsubstantiated hearsay.
9.2.18 The remaining minor allegations regarding ‘not greeting,’ ‘body language,’ or ‘gestures’ are not only unsubstantiated hearsay but are also distractions of a petty nature designed to divert attention from the Respondent’s failure to justify the dismissal.
9.2.18.1 Nothing in these trivial assertions rebuts the objective, documentary evidence of the Applicant’s reasonable expectation of renewal, which remains the primary issue to be determined.
9.2.19 Overall Assessment of Annexure H
9.2.19.1 Annexure H:
9.2.19.1.1 Introduces new and inconsistent reasons.
9.2.19.1.2 Relies on unverified and unreliable evidence.
9.2.19.1.3 Contains admissions of procedural irregularity; and
9.2.19.1.4 Contradicts the Respondent’s primary case.
9.2.19.2 It does not assist the Respondent in discharging its onus and instead reinforces the Applicant’s case.
9.3 Annexure D – Supervisor’s Statement (Subpoenaed Witness)
9.3.1 The witness’s statement focuses extensively on alleged insubordination, absenteeism and non-compliance and historical disciplinary issues. The Applicant was sanctioned, and the disciplinary process was concluded.
9.3.2 The witness, supervisor’s statement is contradicted by his own 2025 performance evaluations where he gave the Applicant consistently high ratings (Applicant’s Bundle pages 79-80).
9.3.3 The Subpoena Admission: When subpoenaed for correspondence regarding the non-renewal, the witness formally responded that “no such correspondence exists.” (Applicant’s Annexure RD)
9.3.4 This proves the witness’s current allegations were manufactured after the fact, as no contemporary record of these “serious concerns” was ever created or maintained.
9.3.5 Excellent Professional Relationship: The Applicant further notes that the witness never raised concerns regarding “unruly behaviour” or “attitude” prior to this dispute. To the contrary, the relationship was professional and positive.
9.3.6 The sudden appearance of these allegations is a retrospective fabrication.
9.3.7 If the alleged absenteeism was as persistent as claimed, a reasonable employer would have addressed it through a structured incapacity or performance management process, which the Respondent failed to do.
9.3.8 Rebuttal of Performance Allegations: The Applicant notes a glaring contradiction between the witness’s allegations and their own written records.
9.3.8.1 The claim that the Applicant “contributed to students’ poor performance” is entirely unsubstantiated and directly refuted by the Achievement Certificates obtained by the applicant in 2024.
9.3.8.2 These documents serve as contemporary proof of a consistent standard of professional competence that the Respondent now seeks to ignore.
9.3.8.3 The witness cannot now claim “deteriorated performance” or “unruly behaviour” when their own formal assessment of the Applicant conducted only months prior proves the exact opposite. This version is not only unsupported, but directly contradicts the Respondent’s pleaded case, thereby further weakening its credibility.
9.3.8.4 It is a fundamental principle of our law that “he who alleges must prove.” The Applicant has provided clear, documentary evidence of consistent performance, while the Respondent’s claims remain mere assertions. In the absence of supporting documentation, the witness’s allegations of poor performance must be treated as unsubstantiated hearsay and dismissed accordingly.
9.3.9 Dismissal of “Intimidation” Allegations: The witness’s claim that lecturers were “intimidated” by the Applicant’s conduct is a serious allegation that is entirely unsupported by a single witness statement or contemporary report.
9.3.9.1 These assertions lack documented evidence or supporting affidavits from the alleged lecturers and therefore must be dismissed as unsubstantiated hearsay.
9.3.10 Selective Disclosure and Bad Faith: The Applicant submits that the witness’s response to the subpoena was selectively curated to mislead the Council.
9.3.10.1 Drawing from the Applicant’s professional tenure at the College, it is established practice that temporary timetables are utilized during the registration period until student numbers are finalized and vacant posts if any are filled.
9.3.10.2 The subpoena explicitly required the disclosure of all timetables used from the start of the 2026 academic year.
9.3.10.3 The witness selectively disclosed only the most recent “finalized” version.
9.3.10.4 By withholding the weekly internal timetables used during the registration and settling period which show unfilled gaps in Mathematics periods, the witness attempted to hide the objective reality that the Applicant’s workload remained vacant and available.
9.3.10.5 Inference of Dishonesty: The witness’s failure to disclose this document is a clear attempt to mislead the Council. It proves that the work remained available and that the decision not to renew the contract was not based on “operational requirements,” but on personal bias.
9.3.11.1 In accordance with the principle of negative inference, the witness’s concealment of this evidence should be viewed by the Commissioner as a tacit admission that the Applicant’s reasonable expectation of renewal was, and is, valid.
9.3.12 The Applicant submits that this matter cannot be treated as a simple “automatic expiry” of a fixed-term contract. In South African labour law, a contract only truly expires when the specific purpose for the employment has concluded such as the end of a defined project or the return of a permanent employee from a sabbatical.
9.3.13 As established in SATAWU obo Markowitz v Portnet, if the work continues to exist and the employer has created a reasonable expectation of renewal (through bursaries, workload allocation, and positive appraisals), the failure to renew constitutes an unfair dismissal.
9.3.14 The Respondent’s attempt to hide the continuing workload via “Lecturer Y” confirms that the dismissal was not due to the “end of a project,” but was an unfair termination of a legitimate employment expectation.
9.3.15 Overall Assessment of Annexure D: The witness has failed to address/rebut the reasonable expectation of renewal which is the primary issue.
9.4 Annexure C – Level 4 Student’s Letter of Complaint
9.4.1 The student complaint alleges that the Applicant “has not been fulfilling her responsibilities.”
9.4.2 This statement reflects conclusions that fall outside the scope of student knowledge and assessment.
9.4.3 Its probative value is therefore limited.
APPLICANT’S REMUNERATION (CLARIFICATION)
10.1 The Applicant notes that the pay slips contained in the Applicant’s bundle (pages 127-129) reflect a salary amount that does not include the pay progression (1.5%) applicable for the 2024/2025 period.
10.2 The Applicant submits that the pay progression was implemented retrospectively, and that back pay was received in February 2026.
10.3 Despite requesting the updated payslip reflecting the adjusted remuneration, the Applicant has not been provided with such documentation by the Respondent.
10.4 Accordingly, the salary reflected in the applicant’s bundle does not accurately represent the Applicant’s final gross monthly income at the time of termination which is R41 929.
10.5 The Applicant submits that, for purposes of any compensation calculation, the correct remuneration inclusive of pay progression should be taken into account.
10.6 The Applicant’s gross monthly remuneration inclusive of pay progression is R42 558.
CONCLUSION
11.1 ABSENCE OF MATERIAL EVIDENCE
11.1.1 The Respondent’s case is further weakened by the absence of critical documentary evidence, including:
11.1.1.1 Any document evidencing the decision not to renew the Applicant’s contract.
11.1.1.2 Any recommendation, motivation, or report supporting the non-renewal decision.
11.1.1.3 Any minutes of meetings where the Applicant’s non-renewal was discussed or decided.
11.1.1.4 Any prior correspondence informing the Applicant of a possible non-renewal.
11.1.1.5 Any warning or consultation regarding the non-renewal of the contract.
11.1.1.6 Any medical assessment/report confirming incapacity.
11.1.1.7 Any incapacity hearing/consultation records.
11.1.1.8 Any evidence the Applicant was considered unable to perform her duties.
11.1.1.9 Any documentation showing unsatisfactory performance.
11.1.1.10 Any evidence linking alleged performance/conduct to the decision not to renew.
11.1.1.11 Any document showing the 2024 disciplinary matters were relied on when deciding not to renew.
11.1.1.12 Any contemporaneous record linking past discipline to the non-renewal.
11.1.1.13 Any document demonstrating operational requirements necessitating the non-renewal.
11.1.1.14 Any staffing plan or restructuring document affecting the Applicant’s position.
11.1.1.15 Properly completed and processed leave documentation at the time the deductions were implemented.
11.2 The Applicant submits that the above omissions are material and support the inference that the Respondent did not have a fair or substantiated basis for the decision not to renew the contract and is seeking to justify the decision after the fact.
11.3 The Respondent has failed to rebut the Applicant’s case on reasonable expectation.
11.4 The Respondent has instead relied on irrelevant allegations, shifting reasons, and unsupported assertions.
11.5 The Respondent has failed to demonstrate that the non-renewal was based on a fair reason or that a fair procedure was followed.
RELIEF SOUGHT
12.1 The Applicant has proven, on a balance of probabilities, that:
12.1.1 She held a reasonable expectation of renewal as contemplated in section 186(1)(b) of the Labour Relations Act.
12.1.2 The Respondent failed to rebut the objective indicators giving rise to such expectation; and
12.1.3 The non-renewal of her contract accordingly constituted a dismissal which was both procedurally and substantively unfair.
12.2 The Applicant has further shown that the Respondent’s case is characterised by:
12.2.1 Reliance on shifting and mutually destructive reasons for non-renewal.
12.2.2 Failure to follow any recognised process in relation to incapacity, misconduct, or operational requirements.
12.2.3 Reliance on unsubstantiated and exaggerated allegations, many of which are contradicted by the Respondent’s own annexures; and
12.2.4 Conduct which resulted in significant financial and professional prejudice to the Applicant.
12.3 In light of the above, the Applicant submits that reinstatement is neither appropriate nor reasonably practicable.
12.4 The Applicant accordingly seeks compensation in terms of section 194(1) of the LRA.
12.5 The Applicant prays for an order directing the Respondent to pay compensation equivalent to 12 months’ remuneration, being the maximum permissible compensation.
12.6 Such compensation is just and equitable in the circumstances, having regard to:
12.6.1 The Respondent’s failure to establish a valid and consistent reason for non-renewal.
12.6.2 The absence of any fair procedure.
12.6.3 The Applicant’s history of repeated contract renewals and long-standing service.
12.6.4 The Respondent’s reliance on allegations that were not properly tested or supported by evidence; and
12.6.5 The cumulative financial and professional prejudice suffered by the Applicant.
RESPONDENT’S SUBMISSIONS
13.1 BACKGROUND AND DISCUSSION
13.2 THE NATURE OF CONTRACT
13.2.1 The applicant was employed as the lecturer PL1. The nature of employment was temporal. The applicant signed a fixed-term contract starting 01 January 2025 to 31 December 2025.
13.2.2 The employer doesn’t dispute that the contract was renewed in previous years. The deciding factors to renew were informed by enrolment of students, performance of the employee, behaviour, previous misconduct, etc. The core duties and responsibilities of the applicant include:
13.2.3 Teaching
13.2.4 To engage in class teaching which will foster a purposeful progression in learning, and which is consistent with the learning areas and programs of subjects and grades as determined.
13.2.5 Extra and co-curricular
13.2.6 To assist the HOD / immediate supervisor to identify aspects which require special attention and to assist in addressing them.
13.2.7 To cater for the educational and general welfare of all students in your care.
13.2.8 To assist the cottage in overseeing students counseling and guidance, careers, discipline and general welfare of all students.
13.2.9 To share the responsibilities of organizing and conducting extra and co-curricular activities.
13.2.10 Administrative
13.2.11 To co-ordinate and control all academic activities.
13.2.12 To control and co-ordinate stock, equipment, and teaching aids which are used and required.
13.2.13 Interaction with stakeholders
13.2.14 To participate in agreed cottage/lecturer appraisal processes practice with the aim of improving teaching, learning and management.
13.2.15 To meet parents and discuss with them the conduct and progress of students.
13.3 REASONABLE EXPECTATION
13.3.1 The notion of reasonable expectations for the contract to be renewed is unreasonable. The applicant’s professional conduct in 2023 till 2025 has deteriorated and made the employment relationship unbearable.
13.3.2 It is important to note that the employer of the applicant is the College Council.
13.3.3 The council of a public college consists of:
13.3.3.1 The principal.
13.3.3.2 Five external people appointed by the Member of the Executive Council.
13.3.3.3 One member of the academic board elected by the academic board.
13.3.3.4 One external member representing donors.
13.3.3.5 One lecturer at the public college, elected by the lecturers at the college.
13.3.3.6 One member of the support staff of the public college, elected by the support staff.
13.3.3.7 Two students at the public college, elected by the student representative council of the public college.
13.3.4 The college council employed more than 30 contract lectures. At the end of each year the members of the council usually meet to discuss operations of the college. This includes recruitment, contracting employees and other things. The meeting usually takes place towards the end of the year. During discussions it became apparent that Ms. Mpungose presence at workplace is no longer conducive.
13.3.5 The applicant was the only employee who was constantly charged for misconduct.
13.3.6 The only employee displaying disrespect towards management or any other employee. Unruly behavior.
13.3.7 Constant absence from work affects the delivery service.
13.3.8 To avoid continuous discipline action in the year 2026 it made sense to employer to part ways. It is therefore submitted that Employee was not dismissed but contract simply came to an end and not renewed. When contract expires automatically. No formal “notice period” is strictly required by the BCEA because the notice was essentially given when the contract was signed in
13.4 REASONS FOR NON-RENEWAL CONTRACT EVIDENCE
13.4.1 CONSTANT ABSENTISM AND FAILURE TO COMPLY WITH RULES APPLICABLE ON LEAVE
13.4.1.1 Determination and directive on leave of absence in the public service gives time frames where
13.4.1.2 How leave application should be treated. The applicant has failed several times to adhere to rules. See Annexure A (leave schedule and leave applications for 2023 and 2024 alone).
13.4.1.3 The employee breach contract to render effective service due to constant sick leave of absence. Over the years employers received multiple applications for leave of absence.
13.4.1.4 The category of leave emanates from sick leave (ill health), family responsibility, unpaid leave and others.
13.4.1.5 The application for leave normally be taken around dates of receiving salary.
13.4.1.6 The employee is constantly absent in morning briefing verbal warning issued.
13.4.1.7 During the festive season in December the applicant has developed trend to be absent on 7-8 December 2023, again on the 11, 12 and 13 December 2024, again 9 and 10, 11 December 2025.
13.4.1.8 The employee corrected the grammar of the campus manger instead of complying, see exchange email from previous campus manager to new campus manager.
13.4.1.9 Annexure B (leave schedule 2025 alone).
13.4.1.10 This folder showcase struggle management faces when it comes to submission of leave.
13.4.1.11 Whenever the employee is absent it naturally disrupts service delivery because other lectures must cover her work. December is normally the busiest and most critical time to be at work due to external exams, invigilation, submission of marks and assessment sticking to the plan is of paramount importance. However, this rule does not apply to the applicant because she is always on leave.
13.4.1.12 It is important also to note that the applicant takes annual leave during school closures.
13.4.1.13 It is not correct that students’ marks are the reflection of the applicant best performance, whenever the applicant is absent, the student’s study on their own or another lecturer intervenes.
13.4.2 THE EFFECT OF PERSISTENT ABCENCE
13.4.2.1 (ANNEXURE C STUDENT COMPLAINT)
13.4.2.2 The effect of teaching and learning, especially meeting deadlines to submit marks
13.4.2.3 Key effects of lecturer absenteeism on service delivery include:
13.4.2.4 Instructional Time Loss: Lecturer absenteeism prevents the completion of the syllabus and reduces the time available for teacher-student interaction.
13.4.2.5 Reduced Academic Performance: Schools with high absenteeism experience lower student grades and pass rates, particularly in core subjects like Mathematics and English.
13.4.2.6 Irregular Educational Delivery: Absenteeism leads to broken, inconsistent teaching, making it difficult for students to build a solid foundation of knowledge.
13.4.2.7 Increased Student Turnover: Unreliable teaching leads to higher drop-out rates as learners lose motivation and face poor classroom environments.
13.4.2.8 Low Institutional Credibility: The persistent absence of teachers destroys trust in the educational system and creates a negative, disorderly school environment.
13.4.2.9 renewed if there is need.
13.4.3 MULTIPLE DISCIPLINARY ACTION
13.4.3.1 Misconduct: The employee broke the workplace rule and was charged with Insurbodination/undermining authority and failure to submit leave application.
13.4.3.2 The applicant was first reporting to Ms. Nkambule Senior lecturer, Due her superiority attitudes, the employer encountered problems maintaining peace she was moved to report to Mr Mathonsi. ANNEXURE D (Supervisor statement)
13.4.3.3 In 2023 and 2024 Mr Mathonsi reported experiencing challenges related to undermining authority and on non-submission of leave absence, most issues were corrective discipline where warning will be issued.
13.4.3.4 ANNEXURE E. MICONDUCT FROM 2024-2025
13.4.3.5 relationship between employer and employee has irretrievable broken down
13.4.3.6 On the 26 March 2025 year 2025 Formal charge was preferred against the applicant for undermining authority/ failure to take reasonable instruction, failure to submit leave application.
13.4.3.7 The applicant was found guilty of the charges and sanctioned one month’s suspension of salary, final written warning and EAP Programmed.
13.4.3.8 The applicant was not happy with the process and outcome; she lodged the appeal to college council.
13.4.3.9 The Appeal outcome was finalized and announced on the 9 December 2026, confirming the guilty version and sentence.
13.4.3.10 Implementation was affected by HR Department.
13.4.3.11 The notice of non-renewal was emailed after the appeal outcome.
13.4.3.12 It is submitted that during appeal proceedings, the applicant breached another rule where she was once again charged formally.
13.4.3.13 The last straw was when the applicant bugged into Ms. Kroukamp office demanding answers, regarding unpaid leave. The action alone was unacceptable as it left management in disbelief. To avoid misconduct in charges 2026, the best option for the employer was not to renew the contract.
13.4.3.14 From the year 2023 the employer has tried to accommodate and be understanding to the employee by employing corrective measures with hope to change or deter the applicant, unfortunately has never changed.
13.4.3.15 In 2024 Applicant declared dispute with ELRC that application was dismissed. SEE ANNEXURE F
13.4.4 EMPLOYEE WELLNESS PROGRAMME
13.4.4.1 On the 27 July 2024 the employee was referred to programme however the EAP was not followed through by the applicant. There were no challenges reported by the applicant to assist finalizing the process.
13.4.5 ANNEXURE G
13.4.6 BENEFIT ALLOWANCE AND MANAGEMENT INTERFERENCE IN 2026
13.4.6.1 Labour Relations Act (LRA), specifically Section 198B. The primary objective of these regulations is to prevent the abuse of fixed-term contracts and ensure that temporary employees are not unfairly denied the rights and benefits afforded to permanent staff.
13.4.6.2 From the first contract in the year 2020 to 2025 the employee received all the benefits 37 % IN Leu of benefit. These percentage covers pension fund contributions, medical aid, performance bonuses and Housing allowance,
13.4.6.3 Access to Opportunities for training or career development on the same basis as permanent staff. All employees are afforded same opportunity to study whether contract or permanent, the applicant wants exception. Below is list of training attended
13.4.6.4 From march -April 202 employees attended different workshop
13.4.6.4.1 In September 2023 Assessor Training course for all lecturers
13.4.6.4.2 October 2024 moderator training.
13.4.6.4.3 2025 employee awarded bursary that was to resume on the 2026 Employees submit that the bursary invitation did not exclude contract lecturers, it was offered as the benefit depending on acceptance from credible higher institution of leaning and employment status.
13.4.6.5 It is submitted that excluding employees from benefits was paramount unfair labour practice.
13.4.6.6 It is also submitted that the HR senior manager’s intention to assist where there was problem cannot be viewed as reasonable expectation. The email was communicated whilst the applicant was still an employee.
13.5 GOOD PERFOMANCE STANDARD
13.5.1 The notion is denied; the mode of assessment of lecturers is an umbrella approach, not individual assessment.
13.5.2 Kindly SEE ANNEXURE H (STATEMENT BY THE ACTING PRINCIPAL)
13.6 TRANSCRIPT RECORDS
13.6.1 It is submitted that the communication was in the morning briefing where all contract employees were informed to bring back the college property, laptops and other.
13.6.2 It is not verbal promise of employment, the records is denied, the campus manager is not employer.
13.7 ADVERTISEMENT FOR POST
13.7.1 The employer denied advertising the post the applicant previously occupied.

ANALYIS OF THE EVIDENCE AND ARGUMENT
13.8 CASE LAW:
13.8.1 In Majambe v University of South Africa (2023), the CCMA noted that a previous renewal does not automatically guarantee a further renewal. If the employee cannot provide evidence (other than mere hope) that the contract will be renewed, the claim will fail.
13.8.2 It is safe to submit that Campus manager, Supervisor, Human resource, Training development units action and treatment towards the applicant in the previous year (2025) was justified by the fact that they didn’t know the future of the college council.
13.8.3 The college council is the employer and the decider therefore the elements of substantive and procedural fairness were adhered to.
13.8.4 I find that the Applicant’s contract simply came to an end due to the effluxion of time.