IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC1263-24/25WC

In the matter between

Mongezi Brutus Tamana Applicant

and

Western Cape Education Department Respondent

PANELLIST: GC. van der Berg.
Date of Award: 16 April 2025

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing took place via digital video conference (ZOOM) on 10 April 2025 at 09:00. The proceedings were both digitally and manually recorded. The applicant, Mongezi Brutus Tamana represented himself. The respondent, Western Cape Education Department, was represented by Nomxolisi S Qonongo-Labour Relations Officer, from the Department of Education. The dispute was scheduled for arbitration in terms of section186(1)(a) and (b)(i)(ii) of the Labour relations Act 66 of 1995 as amended (“the LRA”) as an alleged unfair dismissal. Issue to be decided.
2. The dispute has been referred and categorized as a dispute about an alleged unfair dismissal of the applicant as educator as his fixed term contract was not renewed in January 2025. I must decide whether the applicant’s fixed term contract was terminated and whether the termination was procedurally and substantively fair. Background to the Dispute
3. The applicant referred the dispute to the ELRC after the dispute arose on 09 January 2025 and it was set down for arbitration on 10 April 2025. The representative of the respondent raised a point in Limine that the applicant was aware on 15 October 2024 that his fixed term contract was terminated and came to an end on 31 December 2024. The parties were asked to present on record the verbal application for condonation to determine whether the ELRC has jurisdiction to entertain this arbitration.
4. The representative of the respondent presented that the applicant was in contract since January 2023 on a fixed term contract and it was renewed in January 2024. The applicant applied for conversion on 04 April 2024, and it was declined as he was not in a substantive vacant post, and he was aware that he was not eligible for conversion. On 15 October 2024 the applicant received a letter from the WCED informing him that his fixed term contract expires on 31 December 2024. He was aware that he was not in a substantive vacant post and that his fixed term contract would expire on 31 December 2024. The principal did not provide him with an expectation to come back to school in 2025 as the educators in excess must first be considered if additional educators are needed. He was supposed to refer the alleged unfair dismissal dispute to the ELRC within 30 days after he became aware that his contract of employment expires on 31 December 2024 according to section 191(1)(a)(i) and (b)(i).
5. The applicant stated that he was appointed on a contract of employment since January 2023, and he received a fixed term contract every three (3) months. His contract was renewed in January 2024 and on 15 October 2024 he received a letter indicating that his contract of employment expires on 31 December 2024. His principal applied for conversion of his post to permanent, but he was not successful. He phoned her on 09 January 2025 to ask whether he must report for duty on 13 January 2025 as there might be a position for him. When he was told that there is no position for him, he realized that he must lodge a dispute. His last day was 31 December 2024, and he lodged the dispute with the ELRC after 09 January 2025. He further stated that he hopes that he would be successful to get another fixed term position, and he will be prejudiced if condonation is not granted as he wants reinstatement and to be converted from temporary to permanent.
6. According to section 190(1)(a) and (b) the date of dismissal is the earlier of (a) the date on which the contract of employment is terminated; or (b) the date on which the employee left the service of the employer. The applicant was notified of the expiry of his contract on 15 October 2024, and he left the service on 31 December 2024. However, section 190(2)(d) of the LRA states if an employer terminates an employee’s employment on notice, the date of dismissal is the date on which the notice expires or, if it is an earlier date, the date on which the employee is paid all outstanding salary. It is clear from the information gathered that the date of dismissal is 31 December 2024, and the applicant referred the dispute after 09 January 2025.
7. There was no need for the applicant to apply for condonation as he referred the case within 30 days after his termination with notice date of 31 December 2024. Before that I made the ruling ex tempora that a decision will be taken about condonation as part of the award, and I continued to listen to the evidence of the parties on the alleged unfair dismissal.
8. The parties did not present opening statements and the respondent, and the applicant presented verbal closing statements as agreed. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered. Survey of evidence and argument Documentary evidence.
9. Only the respondent submitted a bundle of documents. The bundle of the respondent was marked as “R” pages 1-20. The applicant did not dispute the authenticity of the content of the bundle.

Respondent’s evidence and argument
The respondent called one witness to testify.
The first witness, Noluvo Papuma, Acting Principal of Sithembele Matiso Secondary School, after having been sworn in, testified as follows:

10. The witness stated that she is Acting Principal since 01 February 2023 to date. She is present to testify about the dispute of the applicant. He was appointed on a one-year fixed term contract of employment since January 2023 and she sent the link to conversion to all educators who wanted to be converted, and they had to apply themselves. The applicant applied for conversion in August 2023, and she heard nothing further from the applicant as some who applied was converted and others not. It was up to himself to find out why he was not converted.
11. In 2024 the applicant signed a new one-year fixed term contract up to December 2024. It was on instruction from the District Office and the applicant was aware of it and he signed in mid-January 2024 the contract of employment. There were six (6) additional educators and three (3) of them were converted in 2023. This is not done every year but in 2025 there was again a mobile class, but not all the children arrived, and the number did not increase as expected.
12. In 2024 there was an opportunity to convert teachers again and she applied herself on behalf of all the teachers and the feedback came and the name of the applicant was not amongst the ones that were approved. She followed up round about 01 December 2024 and there was no post for the applicant as his conversion was not approved. The last application for the applicant took place on 08 November 2024.
13. On page 12 of bundle “R” appears a directive from the WCED that the fixed term contract of the applicant will end by 31 December 2024. The school had more educators than the allocated staff establishment (35-38). They then identify three (3) positions that must leave, and it was teachers that was employed permanently for other schools to absorb them. There were three (3) teachers in access, two on post level 1 and one on Departmental level plus two additional posts. The applicant was in an additional post. The post that the applicant was in can be seen on pages 18 and 19 of bundle “R” and he was teaching Maths, Historical and Natural Science. The additional post is for a year and then the educator will leave after the year.
14. On page 12 it states that this letter serves as confirmation that his current fixed term contract ends on 31 December 2024 which coincides with the 2024 Educator Establishment effective end date. Any vacancy created due to natural attrition, needs to be offered to educators declared in addition to the establishment due to the reduction in posts in the 2025 Basket of Affordable Educator posts, before a temporary appointment on contract can be considered. There was no conversation between her and the applicant regarding the letter that his contract will end by 31 December 2024. She however told him that the school might receive a growth post due to the number of learners anticipated, but she did not tell him who the growth post will go to. Because all the learners did not pitch the applicant was not given a new fixed term contract in 2025 and she did not promise him a post as she must first look at the access list. The applicant was not part of the access list as he was not in a permanent position.
15. The witness confirmed that she had only discussions about the conversion with the applicant and the applicant was aware that his fixed term contract came to an end on 31 December 2024. She had no conversation in December 2024 with the applicant regarding his position at the school. Under cross-examination no questions were asked by the applicant and therefore also no re-examination.
    Applicant’s evidence and arguments
    The applicant, Mongezi Brutus Tamana, former Teacher at Post Level 1, after having been sworn in, testified as follows:
16. The applicant testified that the principal confirmed his statement he made earlier. He said that he was on a fixed term contract in 2023 and again in 2024. His name was not on the list of three (3) educators that were in access. He received the letter from the WCED and given to him by the principal that his fixed term contract will expire on 31 December 2024.
17. On 03 December 2024, the principal told him that his conversion was not successful and on 09 December 2024 he was told that the school might have a growth post. On 09 January 2025 he enquired about the growth post from the principal, and she told him not to come back to school on 13 January 2025. He then referred the unfair dismissal dispute to the ELRC.
18. Under cross-examination he confirmed that he received a letter on 15 October 2024 confirming that his contract of employment will end on 31 December 2024. He further confirmed that he was aware that a fixed term contract will not be renewed for 2025, and he was not expected to report for duty in January 2025. The principal also informed him about the outcome of the conversions and that he was unsuccessful.
19. He agreed that he knew that his contract will not be renewed in 2025, and he phoned on 09 January 2025 because he had an expectation that there might be a growth post due to the anticipated increase in the number of learners. He stated that the conversion process created the expectation, and he did not get any explanation for non-conversion. The applicant confirmed that no three-month contract was offered to him.
    Closing arguments
20. The respondent and the applicant submitted verbal closing arguments on 10 April 2025, as agreed. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award. Analysis of evidence and argument
21. The starting point in determining matters of this nature would obviously be to study the relevant facts of the dispute plus the content of the collective agreement relied upon regarding conversion. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. Further I will refer to the different testimonies of the applicant and the witness of the respondent, as well as the closing submissions of the two parties.
22. I am required to resolve a dispute about an alleged unfair dismissal of the applicant as an educator as his fixed term contract was not renewed in January 2025. I must decide whether the applicant’s fixed term contract was terminated and whether the termination was procedurally and substantively fair.
23. It is the testimony of the first witness of the respondent that the applicant was appointed on a one-year fixed term contract of employment since January 2023. The applicant applied for conversion in August 2023, and she heard nothing further from the applicant as some who applied was converted and others not. It was up to himself to find out why he was not converted. In 2024 the applicant signed a new one-year fixed term contract up to December 2024. The applicant was aware of it, and he signed in mid-January 2024 the contract of employment. There were six (6) additional educators and three (3) of them were converted in 2023. This is not done every year but in 2025 there was again a mobile class, but not all the children arrived, and the number did not increase as expected.
24. In 2024 there was an opportunity to convert teachers again and she applied herself on behalf of all the teachers and the feedback came and the name of the applicant was not amongst the ones that were approved. She followed up round about 01 December 2024 and there was no post for the applicant as his conversion was not approved. The last application for the applicant took place on 08 November 2024. On page 12 of bundle “R” appears a directive from the WCED that the fixed term contract of the applicant will end by 31 December 2024. The school had more educators than the allocated staff establishment (35-38). The applicant was in an additional post. The post that the applicant was in can be seen on pages 18 and 19 of bundle “R” and he was teaching Maths, Historical and Natural Science. The additional post is for a year and then the educator will leave after the year.
25. There was no conversation between her and the applicant regarding the letter that his contract will end by 31 December 2024. She however told him that the school might receive a growth post due to the number of learners anticipated, but she did not tell him who the growth post will go to. Because all the learners did not pitch the applicant was not given a new fixed term contract in 2025 and she did not promise him a post as she must first look at the access list. The applicant was not part of the access list as he was not in a permanent position.
26. It is the testimony of the applicant that he was on a fixed term contract in 2023 and again in 2024. His name was not on the list of three (3) educators that were in access. He received the letter from the WCED and given to him by the principal that his fixed term contract will expire on 31 December 2024. On 03 December 2024, the principal told him that his conversion was not successful and on 09 December 2024 he was told that the school might have a growth post. On 09 January 2025 he enquired about the growth post from the principal, and she told him not to come back to school on 13 January 2025. He then referred the unfair dismissal dispute to the ELRC.
27. It is the submission by the applicant that he received the letter on 15 October 2024 that his fixed term contract will end on 31 December 2024. His conversion to a permanent position in November 2024 was also not successful and on 09 January 2025 he checked with the acting principal whether there are enough children for him to be appointed in 2025. He was told by the principal that he must not report on 13 January 2025 at the school as there is no post for him as expected. The applicant believes that the respondent is supposed to convert his post to be permanent.
28. It is the submission of the representative of the respondent that the applicant was a post level 1 educator at the Sithembele Matiso Secondary School on fixed term contracts from 01 January 2023 up to 31 December 2023 and again from 01 January 2024 to 31 December 2024. The matter in dispute is an unfair dismissal in terms of section 186(1)(a)(b) of the LRA and dismissal means that an employer has terminated employment with or without notice. It further states in (b) an employee employed in terms of a fixed term contract of employment reasonably expected the employer-(i) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.
29. She further submitted that the onus is on the applicant to prove reasonable expectation and according to the facts presented, no reasonable expectation was created as the applicant only hoped to be again appointed on a fixed term basis or permanent. The applicant had his own subjective reasonable expectations. The WCED appointed the applicant on a fixed term basis for 2024 and on 15 October 2024 he was given notice of the expiry of the fixed term contract on 31 December 2024. The WCED did not create any reasonable expectation that his fixed term contract will be renewed in 2025. Other reasons for no expectation were that his application for non-conversion was discussed with the applicant on 12 December 2024 and his conversion was unsuccessful as he was in no substantive post
30. According to the representative of the respondent there was no capacity to offer the applicant a further fixed term contract for 2025 as educators in access must first be taken into consideration for appointment. There was no growth or promotion post vacant for 2025. The applicant was not unfairly dismissed as there was no objective grounds for his expectations. He was not converted as he was supposed to meet the requirement as stated in the Collective Agreement.
31. It is the further submission of the representative of the respondent that the educator must satisfy the following criteria to be considered for the conversion of his/her temporary contract status to permanent if he was in a substantive post.
    (1) Be professionally qualified for the education profession.
    (2) Be suitable qualified to teach the subject and in the phase in which the conversion appointment will be made.
    (3) Meet the inherent requirements of the post in which his or her conversion or appointment will be made and
    (4) Be registered with the South African Council for Educators (SAGE).
32. According to the respondent in the matter of WESUSA & Others vs Jacobs 2000 8 BLLR 977 (LC) the Court remarked that the onus will be discharged if the respondent can show credible evidence that its version is more probable and acceptable versions. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed. Where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with conversion that one version is false and rejected with safety.
33. After making an analysis of the process, I find that the applicant was indeed on a fixed term contract that expired on 31 December 2024 with a notice period from 15 October 2025. I firstly find that the applicant was not converted to a permanent position. As indicated, the applicant bears the onus of proving the claim on a balance of probability about his dismissal as he could not prove that there was an additional position vacant where he could be appointed on a further fixed term contract for one year as the number of learners did not increase in 2025 as anticipated. The applicant was not unfairly dismissed as there was no objective grounds for his expectations that were subjectively created by himself. The fixed term contract was not renewed, and he was aware of it, and he could not have an expectation of being appointed permanently.
34. Considering the above I will make the following award.

AWARD

35. The applicant, Mongezi Brutes Tamana, was not converted to a permanent post as he was on a fixed term post for 12 months from January 2024 to 31 December 2024 and not in a substantive vacant post. Secondly the applicant was given notice of the expiry of his fixed term contract and no expectations were created by the respondent, Western Cape Education Department and the Acting Principal that the fixed term contract would be renewed in 2025. Therefore, the contract of employment of the applicant was procedurally and substantively fairly terminated.
36. There is no order as to costs.

Signature:

Panelist: Gert van der Berg
Sector: Western Cape Education Department