IN THE ELRC ARBITRATION
BETWEEN:

Siphumelele Nhlanhleni Ngcamu “the Applicant”
and
HOD of the DHET “the Respondent”

ARBITRATION AWARD

Case Number: ELRC1255-24/25KZN

Date of arbitration: 09 May 2025

Date of award: 12 June 2025

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were set down for 09 May 2025 and were finalized via deposed affidavits filed on the16 May 2025, 22 May 2025 and 29 May 2025.
2. The arbitration hearing was held online.
3. The Applicant, Mr. Sphumelele Nhlanhla Ngcamu was present and represented himself. The Respondent, the Head of Department of the Department of Higher Education and Training, KwaZulu Natal was represented by Mr. Fortune Ngcobo, its Labour Relations Officer from the Human Resource Management and Development Section.
4. It was decided that the Applicant party would file a founding affidavit on or by the 16 May 2025 after which the Respondent party would file an answering affidavit on 23 May 2025. The Applicant party would then file a replying affidavit on 26 May 2025. However, on 22 May 2025, the Respondent Representative filed an answering affidavit and the Applicant filed a replying affidavit on 29 May 2025.
5. The proceedings were held in English and manually and digitally recorded.
6. The services of an interpreter were not requested.

ISSUE TO BE DECIDED

7. I am required to determine whether the non-renewal of the Applicant’s fixed term contract by the Respondent amounted to an unfair dismissal of the Applicant. The Applicant sought reinstatement or compensation of 12 months of his salary as relief. I have to determine if there was a reasonable expectation that the contract would be renewed and consider factors regarding the reason for fixing the contract amongst others.

BACKGROUND

The Applicant was employed on a fixed term contract as a Lecturer with personnel number 0002449 on the 01 April 2024 at the Umgungundlovu TVET College. The fixed term contract was to end on the 30 September 2024. The Applicant was employed in a post level 1 position and earned R38 088.74 per month.

8. The Applicant’s fixed term contract was renewed on a month to month basis until 31 December 2024. He reported for duty in January 2025 and later that month, he discovered that his contract had not been renewed. He also attended an interview on 30 January 2025 for the same Lecturer position as his and was unsuccessful.
9. Aggrieved about the non-renewal of his fixed term contract, the Applicant referred an unfair dismissal dispute to the ELRC on 11 February 2025 under section 186 (1) (b) of the Labour Relations Act, no 66 of 1995 (as amended)(LRA) claiming that he had been unfairly dismissed as he had a reasonable expectation that his contract would be renewed. The ELRC scheduled the matter to be conciliated in March 2025 but it remained unresolved and a certificate of outcome was issued.
10. The Applicant requested that the matter be arbitrated. The ELRC then scheduled the matter to be arbitrated before me on 09 May 2025 with affidavits filed as shown in paragraphs [1] to [4] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

11. As per section 138 (1) of the LRA, I only summarized the evidence which I regarded to be relevant to the dispute and which helped me to reach my decision.

The Applicant’s Case

12. In his founding affidavit, the Applicant deposed as follows: He was unfairly dismissed as he had an expectation that his contract would be renewed in January 2025. All contract employees had their contracts renewed in January 2025 except himself and no reason or explanation was given.
13. The Respondent allowed the Applicant to return to work in January 2025 and to sign the staff register as was expected when an official was employed. The Respondent gave the Applicant work instructions in January 2025 as was the norm when employees started their work day which the Applicant complied with such.
14. In the middle of January 2025, timetables were issued which reflected the Applicant’s classes for the year. This further cemented the expectation that the Applicant’s contract had been renewed.
15. He noted that in 2024, whenever contracts were due for renewal the practice was that the official reported to work, signed the staff register and went about the day’s activities. However when the contract was not renewed, the official was not allowed to sign the register and to go about the day’s activities but rather was called to the campus managers office. This did not happen with the Applicant on all occasions.
16. In his replying affidavit, the Applicant deposed as follows: Out of 7 posts, there was no reason given as to why only 1 was re-advertised and 6 renewed. The Applicant demonstrated expectation by means of signing the attendance register, being given instructions to perform duties and having his name on the timetables that was given to the learners. This satisfied the requirements for section 186(1)(b) of the LRA to define a dismissal from the Applicant union representative.
17. The attendance register mentioned was not just a document found at the entrance gate, it was a daily operational tool located inside the staffroom. Entrance to this staff room would not naturally be possible to ex-employees.
18. Further the applicant demonstrated that all contract staff had their contracts renewed except himself, which also falls within the definition of dismissal in terms of 186(1) (b) of the LRA.
19. In Schedule 8 code of good practice to the LRA : dismissal point 2 sub point (4) In cases where the dismissal is not automatically unfair, the employer must show that the reason for dismissal is a reason related to the employee’s conduct or capacity, or is based on the operational requirements of the business. If the employer fails to do that, or fails to prove that the dismissal was effected in accordance with a fair procedure, the dismissal is unfair.
20. The Respondent did not give any reason whatsoever for the dismissal of the Applicant as required in schedule 8. However, by employing another person in the applicant’s position inadvertently, demonstrated that the Respondent had no operational reason for the dismissal. Section 188(1) of the LRA stipulates that a dismissal should be both substantively fair (for a fair and lawful reason) and procedurally fair (complying with a fair procedure). The requirement for a reason for dismissal was stressed in this clause.
21. The Respondent’s argument that an HR process was followed in re-advertising and hiring in the position demonstrated the Respondent’s willingness to use internal processes to get rid of unwanted employees. In this case this was the Applicant.
22. The process of advertising the post, having interviews for the post and hiring someone else was a process that happened after the dismissal occurred, a dismissal that the Respondent had not accounted for with a reason.
23. All in all, the protections afforded by LRA require the Respondent to give a fair reason for non-renewal. This reason had to have its foundation in law and procedure.
24. It was a scary thought and a potential violation of employee rights for an Employer to dismiss any employee without reason but by relying on following procedure correctly.
25. By allowing the Applicant to resume work in January 2025 thereby creating the expectation that the contract had been renewed, this had unfavorable consequences for the applicant: the applicant has declined other offers for employment, the applicant stopped looking for economic opportunities, the applicant resumed planning, research and resource procurement for the year’s work, the applicant took himself out of the job market under the impression he is employed, the applicant left his family in Pretoria for the job, the applicant used his own money paying rent for accommodation near the work place.
26. The Applicant’s affidavit contained the following documents as attachments: Initial Temporary Contract Of Employment between the Parties dated 10 April 2024, Fixed Term Contract Renewal Letters for October to December 2024, Weekly Timetables for 2025 with the Applicant’s Name as Lecturer for various Subjects, Weekly Timetables Effective 23 January 2024 with Mr. X where Lecturer was not yet appointed, Post UTVETC/CEL/NCVG202422 Advertisement for January 2024, Applicant’s CV, Applicant’s December 2024 Pay slip, , Post UTVETCKE/E250110 Advertisement, and Respondent’s Edendale Campus Staff Register for 06 January 2025 with Applicant’s Signature.

The Respondent’s case

27. The Respondent Representative, Mr. Fortune Ngcobo filed an answering affidavit and deposed as follows amongst others: The Applicant’s initial contract clearly stated its temporary nature. All contract lecturers were formally reminded in December 2024 that their contracts would lapse at the end of the year and that there should be no expectation of renewal unless informed otherwise.
28. The Respondent advertised a position in open media in December 2024 to attract suitable candidates. The Applicant applied, was shortlisted and interviewed. The Applicant was not appointed on merit. Another candidate performed better. The process demonstrated a fair and objective assessment reinforcing no entitlement to reinstatement.
29. The Applicant was not instructed to report for duty in January 2025. No contract staff were called back prior to re-appointment. Entry to campus was unauthorized. There was no evidence provided to prove instructions given. The signing of the register did not constitute reinstatement or a continuation of employment.
30. Internal planning processes caused the Applicant’s name to be on the timetables for 2025. Old templates were temporarily used pending final staff appointments. Placeholder names like the Applicant’s did not represent contractual appointments.
31. Section 186 (1) (a) of the LRA allows a claim only where there is a reasonable expectation of a renewal. The Applicant had no contractual or legitimate claim to the post. The King Sabata Dalindyebo v CCMA case cited was distinguishable as it involved continuous renewals over years unlike the 3 months in this case, the Applicant was not excluded from applying but he applied and failed and the college had clearly communicated that the contract was ending in December 2024.
32. The courts have consistently held that participating in a new recruitment process nullified a claim of expectation. SA Rugby v CCMA 2006 held that an employee could not claim expectation after applying for a position and not being selected.
33. The Applicant pursued the dispute after failing the interview process. His intention was to secure the position by any means and not because of any legitimate expectation. He did not officially dispute the non-renewal until he was not successful in the interview. This undermined the credibility and timing of his claim.
34. The Applicant abused the functions and powers of the ELRC. The College acted procedurally and substantively fair. The Applicant was afforded an equal opportunity through an open and competitive process. There was no reasonable expectation of renewal created by the College. The claim was without merit and should be dismissed.
35. The Respondent representative’s affidavit contained the following documents as attachments: Initial Temporary Contract Of Employment between the Parties dated 10 April 2024, Fixed Term Contract Renewal Letters for October to December 2024, Courtesy Letter Reminding Applicant of a lapse of his Fixed Term Contract on 31 December 2024, Post UTVETCKE/E250110 Advertisement, Invitation for Applicant to attend an Interview on 29 January 2025, Non Appointment Letter dated 30 January 2025 and Respondent’s Edendale Campus Staff Register from 07 to 28 January 2025 without Applicant’s Signatures.

ANALYSIS OF EVIDENCE AND ARGUMENT

36. It is common cause that the Applicant was employed on an initial temporary employment contract for six months from 01 April 2024 to 30 September 2024. The contract was renewed for a month in October 2024, November 2024 and December 2024. In November 2024, the Applicant was notified that his employment contract would lapse on 31 December 2024. The Respondent still needed services for the road construction lecturer position and there was budget for it. The Applicant’s position was advertised and a closing date for the application was 19 January 2025. The Applicant signed an attendance register for the 6th of January 2025. From the 7th of January 2025 onwards, the Applicant did not attend work. The Applicant attended an interview for the temporary position on 30 January 2025. The Applicant was not successful and another candidate was employed. The Applicant did not commit any misconduct nor was he charged for any wrong doing.
37. The Respondent disputed that the Applicant had a reasonable expectation that his temporary contract of employment would be renewed and that he was unfairly dismissed when his contract was not renewed in January 2025. The Respondent disputed that the Applicant was given instructions on 06 January 2025. The Respondent submitted that the Applicant’s entry into the Edendale Campus on 06 January 2025 was unauthorized.
38. According to clause 4.8.4 (a) and (c) of the DHET Recruitment and Selection Policy, an executive authority may employ persons additional to the establishment for specific reasons and such a contract appointment may not exceed twelve (12) consecutive calendar months unless permission is obtained from the Minister of Public Service and Administration. The Applicant had worked for nine (9) consecutive months but had been notified that his contract would lapse on 31 December 2024.
39. The Applicant claimed that he had been dismissed based on the definition of dismissal in section 186 (1) (b) (i) of the LRA. I have to determine if the Applicant had a reasonable expectation that his fixed term contract would be renewed. In order for the expectation to be reasonable, the employee must prove an objective basis for the creation of this expectation, apart from the subjective say-so or perception of the employee(see Auf der Heyde v University of Cape Town (2000) 21 ILJ 1758 (LC) Para 26; Dierks v University of South Africa (1999) 20 ILJ 1227 (LC) at 1246). The test to determine whether the employee’s expectation was reasonable, is therefore an objective test in terms of which it should be determined whether a reasonable employee in the circumstances prevailing at the time would have expected the contract to be renewed on the same or similar terms (see SA Rugby (Pty) Ltd v CCMA [2006] 1 BLLR 27 (LC) 30 Para 11.
40. The Applicant submitted that he had reasonable expectation that his contract would be renewed as his name appeared on the weekly timetables for the year 2025 instead of Mr. X where it was clear that an appointment was pending, he was allowed into the Campus and given instructions and signed the attendance register on 06 January 2025, his contract had been renewed three times, other temporary lecturers who received courtesy letters like him on lapsing of their contracts on 31 December 2024 all had their contracts renewed and back dated to 01 January 2025. The Respondent submitted that the use of the Applicant’s name on the 2025 weekly timetables was due to internal planning which used it as a placeholder. The Respondent disputed that the Applicant was given instructions to carry out on 06 January 2025. No evidence was provided by the Applicant of such instructions. The Respondent also submitted that the Applicant’s entry into the campus on 06 January 2025 was unauthorized. Staff timesheets from 07 January 2025 to the end of January 2025 indicated that the Applicant’s contract had expired. On 07 January 2025, the Applicant would have been informed not to report for duty like he did on 06 January 2025.
41. The Applicant had applied for the position he occupied in 2024 and was shortlisted and called to an interview on 30 January 2025. To me, the Applicant was aware that him continuing with the road construction lecturer position was dependent on whether he was successful with his interview amongst other candidates on 30 January 2025 after evaluation.
42. Considering that the Applicant was not allowed to report on 07 January 2025 onwards, it shows that the Respondent did not intend to renew the Applicant’s contract of employment. The Respondent could have used Mr. X as a place holder to ensure that the Applicant did not expect to have his contract renewed. The Respondent could have done better by ensuring that the Applicant’s name did not appear in 2025 weekly registers. This was an error on the part of the Respondent. In light of the other factors like the notice of termination of contract, the advertisement of the post and the Applicant applying for the position, I am persuaded that the bona fide error by the Respondent did not give the Applicant a reasonable expectation of extension of his contract. This principle was confirmed in Imatu and others v City of Johannesburg Metropolitan Municipality and others [2014] 6 BLLR 545 (LAC).
43. Had the Applicant been successful in his interview compared to other candidates, he would have signed a new temporary employment contract and would not have referred this matter. Because he was unsuccessful, he argues that he had a reasonable expectation that his contract would be renewed. When his position was advertised, he would have engaged the Respondent with his expectation that his contract would be renewed but he did not. Instead he applied for the position basically admitting that he could only continue in the position if he was successful with the interview after being shortlisted. Participating in a selection process nullified a claim of a reasonable expectation of having a fixed term contract renewed. The courts confirmed this principle in the SA Rugby matter where it was held that an employee cannot claim expectation after applying for a position and not being selected. Based on all the above, I am not persuaded that the Applicant had a reasonable expectation to believe that his contract would be renewed. Thus, it is my finding that there was no dismissal as the contract lapsed naturally due to the effluxion of time, as per the meeting of the minds between the parties and after proper notice was given.

AWARD

44. The non-renewal of the fixed term contract between the Applicant, Mr. Siphumelele Nhlanhleni Ngcamu and the Respondent, the HOD: DHET did not amount to an unfair dismissal as the subjective expectation of the Applicant could not be objectively justified.
45. Accordingly, the Applicant’s case is dismissed.

Lungisani Mkhize

Arbitrator 12 June 2025
ELRC1255-24/25 KZN