17 June 2025 2025 -ELRC1282-24/25GP

Case Number: ELRC 1282-24/25 GP
Commissioner: M.A. HAWYES
Date of Award: 4th of June 2025

In the ARBITRATION between

Solomon Nditsheni Tshikhudo
(Union/Applicant)

and

Department of Higher Education and Training: Gauteng (DHET)
(Respondent)

Union/Applicant’s representative:
Union/Applicant’s address:

Respondent’s representative:
Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for arbitration on the 22nd of May 2025 at the Central Johannesburg TVET College. The arbitration was finalised on the same day.
1.2 Mr. David Lephoto, a union official from NEHAWU represented the Applicant.
1.3 Mr. Thokozani Nkambule, a labour relations officer, represented the Respondent.
1.4 After the completion of evidence, the parties requested an opportunity to submit written closing arguments by the 29th of March 2025. The said arguments were timeously received and my award now follows.
1.5 The parties each made use of bundles of documents. The Applicant’s bundle was marked Bundle ‘A’ and the Respondent’s bundle was marked Bundle ‘R’.
1.6 The Applicant’s bundle consisted of the following policies of the Respondent namely the Post Provisioning Norms (PPN) Policy for Technical and Vocational Education and Training (TVET) Colleges and the Procedure Manual for the Implementation of TVET Post Provisioning Norms and Organizational Structure.
1.7 Detailed notes and a digital recording was kept of the entire arbitration process.
ISSUE IN DISPUTE
Whether the Applicant was dismissed as contemplated in section 186 (1) (b) of the Labour Relations Act, no 65 of 1995 (as amended) in that the Applicant alleges that the College officials created an expectation that his fixed term contract would be renewed and it was not renewed.
BACKGROUND TO THE ISSUE
3.1 The Respondent first employed the Applicant as a PL1 lecturer on a fixed term contract in January 2020.
3.2 The Applicant’s contract was renewed seven times thereafter through the years following.
3.3 The Applicant was issued with an eighth contract from the 29th of January 2024 until the 31st of January 2025.
3.4 It is common cause that the eighth contract was not renewed and when the Applicant reported for duty on the 1st of February 2025 he was advised by the College Manager that his contract had terminated and that he should not continue teaching.
3.5 At the time of the termination of his contract the Applicant earned a gross monthly salary of R29 834-56.
SURVEY OF PARTIES EVIDENCE AND ARGUMENT
APPLICANT’S EVIDENCE AND ARGUMENT
4.1 The Applicant testified under oath and additionally led the evidence of another college lecturer, namely Ms. Philile Sithathu, whose contract was coming up for renewal and who potentially faced the same problem that the Applicant had faced.
4.2 The Applicant testified, inter alia, that in January 2024 he received a letter from a Mr Munisi (the then Principal) that he had been placed on the “unmatched staff” list. The Applicant deposed that he had misplaced the letter and it did not form part of his bundle.
4.3 The Applicant made use of a letter, the details of which were identical to the letter he received. This is found at Bundle A, pages 9-10.
4.4 The letter contained an assurance that “every effort will be made to accommodate you within the provisions and diagnose your service to the college and higher education.”
4.5 The Applicant interpreted this to mean that he had hope for permanent employment and accommodation under Clause 6.3.2 of the PPN policy.
4.6 The Applicant testified that he understood the words as not having been placed on a matched list to mean that he did not have a matched permanent post at the moment but that he had a reasonable expectation to get one in the future.
4.7 The Applicant deposed further that he received a letter from Mr. W.S Plaatjie (the current deputy principal of the college) dated the 5th of June 2024 (see Bundle ‘A, page 11) The subject line read: “Permanent employees migrated from the college council”. Plaaitjie requested the Applicant to supply certain documents and an updated CV. The Applicant complied and it reinforced his hope for permanent employment.
4.8 The Applicant received a letter from College Human Resources(signed by the Acting Principal) (see Bundle ‘A’, page 12) requesting him to submit certified documentation by the 5th of February 2024 for “migration process”.
4.9 The Applicant submitted all the documentation as requested and reinforced the Applicant’s expectation that this was part of the process to become permanent.
4.10 The Applicant also referred to an email from a Mr Brian Kaku (recruitment officer) (see Bundle ‘A’, page 13 with the subject ‘Migration’ dated the 26th of June 2024). Kaku requested the Applicant to submit Z83 forms and assumption of duty forms. The Applicant complied and submitted all the documentation and this further served to increase his expectation that he would be permanently appointed to a DHET post.
4.11 During cross examination the Applicant conceded that the last contract he received (from 29th of January 2024 and 31st of January 2025) mentioned an automatic end to the contract and cited the renewal of the said contract as being due to “increased number of students”.
4.12 The Applicant admitted further that there was no clause in his last fixed term contract that created an expectation of permanent employment.
4.13 The Applicant then led the testimony of Ms Philile Sithathu, also employed as a PL1 lecturer on a fixed term contract at the Central Johannesburg TVET College.
4.14 She too received an “unmatched staff” letter in December 2023.
4.15 Sithathu testified that she understood “unmatched staff” to be college structure vacancies on a waiting list..
4.16 Sithathu believed that the PPN policy protected employees (like herself and the Applicant, employed before November 2020 as being “ring-fenced” from job losses.
4.17 She cited clauses 6.2.1.7 and 6.2.1.8 of the PPN Procedure Manual as being the basis for protecting her and the Applicant’s positions within the College employment structure.
4.18 Sithathu testified that she faced the same situation that the Applicant found himself in because her contract ran from the 29th of January 2025 to the 30th of June 2025.
4.19 During cross examination Sithathu also acknowledged that if a contract ends and no new one is issued then the person is not employed.
4.20 It was argued on behalf of the Applicant that the College which falls under the Respondent created an expectation that his contract would be renewed until he could be permanently employed by the Respondent. The “unmatched letter” indicated that no permanent DHET post was available at the time and that the PPN policy provided for continued fixed term employment or redeployment until the permanent posts emerged.
4.21 It was also argued (seemingly as an alternative argument) that if the Applicant was employed on a fixed term contract on the basis of the number of students that the College had enrolled in the past that if the contract was not renewed due to a drop in student numbers that the Applicant’s services had been terminated due to operational requirements and the Respondent had not complied with the provisions of section 189 of the LRA.
4.22 The Applicant sought the further relief of reinstatement with the payment of retrospective salary plus IQMS pay progression and salary increases to date. Lephoto undertook to quantify the exact amount payable to the Applicant in his closing arguments.

RESPONDENT’S EVIDENCE AND ARGUMENT
4.23 The Respondent led the evidence of Mr. W.S Plaaitjie (the Acting Deputy Principal of Corporate Services) and the testimony of the Campus Manager, Mr. N. Mathibana.
4.24 Plaaitjie testified with reference to the Applicant’s fixed term contract, that the Applicant’s contract commenced on the 29th of January 2024 and ended on the 31st of January 2025 and gave the reason for the renewal to be an “increased number of students”.
4.25 Plaatjie testified further that the “unmatched staff letter” issued to the Applicant, Sithathu and others was not matched to the DHET approved PPN structure.
4.26 “Unmatched” simply meant that there were no current permanent positions on the approved PPN structure.
4.27 The PPN Policy (see clause 6.2.1.8) applies to employees on the PPN (DHET- approved) structure and not College Council fixed term employees whose terms expire. The PPN policy does not override contract end dates.
4.28 Plaaitjie testified further that the HETC Circular) (see Bundle ‘A’, page 45), addressed employees already migrated to PERSAL (the government permanent employee salary system) on contract and not to College Council employees like the Applicant and Sithathu.
4.29 In so far as the Migration policy correspondence that the Applicant received and which the Applicant interpreted to mean that he was progressing to a permanent position, Plaaitjie clarified that the correspondence that the Applicant and other unmatched employees received was part of the College’s plea to the DHET to consider migrating unmatched staff. It was not a guarantee of migration or appointment as only the DHET had the authority to make permanent PERSAL appointments. Plaaitjie testified that they received no approval/ response from the DHET.
4.30 Mathibana testified inter alia, that the funding grid referred to in Bundle ‘R” determines how student enrollment numbers are approved and funded by the DHET. Lecturer allocation and appointments are based on this.
4.31 Mathibana explained that the DHET had initiated the phasing out of N1 to N3 programs. Alexander Campus (where Mathibana was currently based and the Applicant had been based during the tenure of his contract) no longer had N2 and N3. The Applicant, during his last contract, was partly responsible for teaching N2 and N3 students.
4.32 Accordingly, the reduction in student numbers meant that no student load could be allocated to the Applicant and hence his contract was not renewed.

ANALYSIS OF EVIDENCE AND ARGUMENT
5.1 The Applicant bears the onus of proving on a balance of probabilities that the Respondent (DHET) created a reasonable expectation that his contract of employment would be renewed until such time as he was identified for permanent employment.
5.2 Ms Sithathu appears to have the same expectation when her contract expires at the end of June 2025.
5.3 For the Applicant’s expectation to be reasonable the Applicant must prove that his appointment on an “unmatched list” is identical to being placed on a “matched list”.
5.3 Clause 1.4 of the Respondent’s PPN Policy seeks to support the implementation of section 20 of the Continuing Education and Training Act, no 16 of 2006 (as amended) (CET Act). This policy authorizes the Minister to establish posts within a structure that are remunerated in accordance with Departmental budget and strategy. This policy is enforceable by the Minister via the Public Service Act, holding the College Principals accountable and responsible for the implementation of Departmental HR Policies and Procedures.
5.4 Clause 1.4.2 states that a needs based post provisioning model was developed, aimed at providing posts to colleges in accordance with all their curriculum and management needs and therefore to enable such colleges to perform optimally.
5.5 I find that the Procedure Manual for the Implementation of TVET Post Provisioning Norms and Organizational Structure (PMIPPNOS) was developed to practically implement the Respondent’s PPN Policy.
5.5 I find that the PMOPPNOS clearly distinguishes between “matched” College employees and “unmatched” College employees. Matched employees are often still employed on a fixed term contract but have been identified for future substantive permanent posts and with that in mind they are migrated to PERSAL.
Clauses 6.2.17 and 6.2.1.18 of PMIPPNOS relate specifically to matched employees and not unmatched employees.
5.6 Unmatched employees are dealt with specifically under Clause 6.3 of PMOPPNOS.
5.7 Unmatched employees are clearly not matched to identified permanent posts and thus are employed contractually according to the College’s student operational needs.
5.8 It is common cause that the Applicant’s last contract refers specifically to the reason for renewing his contract of employment as relating to the operational requirements for students. As an unmatched employee there is no reason to believe that any renewal of the Applicant’s fixed term contract in the future would not be linked to the all-important operational requirement for students.
5.8 Mathibana gave undisputed testimony that the DHET had begun phasing out N1 to N3 programs which the Applicant had been involved in teaching students at Alexander Campus during the tenure of his last contract.
5.9 Clearly, operational requirements had changed and the College, based on current student numbers did not see an open path to renew the Applicant’s contract of employment.
5.10 I find that the College acted in accordance with the terms of its contract with the Applicant and did not create a reasonable expectation that his contract would be renewed.
5.11 The Applicant was on an unmatched list of employees and could not have had a reasonable expectation that he would be kept contractually employed until permanent employment because the need for students clearly fluctuated from year to year.
5.12 The clauses (6.2.1.7 and 6.2.1.8 of the PMIPPNOS relied upon by the Applicant and Sithathu do not relate to unmatched employees and provide no basis for a reasonable expectation of ultimate permanent employment. The same reasoning applies when the College tried to lobby for the Applicant and other unmatched employees to be transferred to the matched list of employees and asked them to supply documentation to assist in that process. Help and a reasonable expectation, in these circumstances operate in different spheres.
5.13 Lephoto argued that because the Applicant’s contract was not renewed due to operational requirements that the provisions of section 189 of the LRA relating to consultation were not complied with.
5.14 This argument does not carry weight since no dispute relating to a dismissal for operational requirements was referred to Council in the first place.
5.15 I find that the Applicant cannot stack a dispute relating to operational requirements (retrenchment) on top of the originally referred dispute unless a specific dispute has been mentioned in the original referral as an alternative dispute. It was not in this instance.
Furthermore, I find that dismissals for operational requirements (retrenchment) relate to permanent employees and not those on a fixed term contract. The Applicant has not established on a balance of probability that he ever was a permanent employee.
In conclusion I find that the Applicant has also not proven a dismissal as contemplated in section 186 (1) (b) of the LRA on a balance of probabilities.