17 October 2025 -ELRC1335-24/25GP

IN THE ELRC ARBITRATION
BETWEEN: ELRC 1335-24-25GP

SEVAH MALUNGANE “the Applicant”
and

DEPARTMENT OF EDUCATION & TRAINING – GAUTENG “the Respondent”

ARBITRATION AWARD

Case Number: ELRC1335-24/25GP

Date of award: 07 October 2025
ELRC Arbitrator: Gcina Mafani

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

1.1. The matter was set down for arbitration on the 30th of April 2025 The arbitration proceeded for several days and concluded on the 29th of August 2025.
1.2. The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of Section 186 (5) (a) (1) of the Labour Relations Act (the LRA). The hearing was conducted face to face at the GDE Head Offices.
1.3. The Applicant Sevah Malungane attended the hearing and on the first day, he represented himself and thereafter was represented by Mr. Thabo Mofokeng the SADTU official. The Respondent was also present and represented by Ms. Amelia Ngwenya the Labour Relations Officer of the Respondent.
1.4. Before the start of the arbitration hearing both parties submitted their bundles. The Respondent submitted her bundle of documents which was later marked as Exhibit “A” The Applicant also submitted his which was later marked Exhibit “B” then later after much deliberation further documents were submitted by the Applicant.
1.5. The parties agreed to file closing arguments by the close of business hours on the 15th of September 2025.
1.6. The submissions of both parties were carefully considered but will not be repeated here as contents basically mirror what was put to parties during the leading of evidence and cross examination in the arbitration.

FACTUAL BACKGROUND

2.1. The Applicant Mr. Malungane is currently unemployed, and he was employed on short term contracts from 2021 until 31st of October 2024.
2.2. The contract signed in October 2024 terminated and the Applicant was not offered another contract.
2.3. Mr. Malungane was dissatisfied because he was not given Notice of termination and further was not given a termination letter.
2.4. Mr. Malungane continued attending at the school until February 2025 when he was told he would not be compensated for continued attendance.
2.5. He lodged a grievance which yielded no positive results then he referred the case to the ELRC in terms of section 186 (5) (c) of the Labour Relations Act as amended.

ISSUE TO BE DECIDED

3.1. The Commissioner is required to determine whether the Respondent acted unfairly by not absorbing the Applicant permanently.
3.2. Whether the Applicant had signed a valid contract with the Respondent beyond the 31st of October 2024.
3.3. Whether the Applicant was appointed in a substantive post against the Principal post.
3.4. Whether the Respondent erred in failing to issue a termination letter.

APPLICANT’S EVIDENCE AND ARGUMENTS

4.1. During the Applicant’s testimony he confirmed that he is PL1 educator teaching English and Social Science
4.2. He was appointed in 2021 as a substitute teacher when one of the lady teachers went on retirement. He argued that at that time he was eligible for permanent appointment, yet he was given another contract.
4.3. Mr. Malungane stated that the issue of time is immaterial because in sintu it is said that “Icala Aliboli” so the Respondent cannot say that he cannot raise that issue because of time. He has every reason to pursue that case.
4.4. He testified that because he was not absorbed, there was a period of nine (9) months where he had no income. He is demanding recourse for the nine months.
4.5. He understands that the post remains available until the Principal is appointed at the school and because he was appointed in a post instead another person was appointed in his place.
4.6. He denied that he was appointed against a Head of Department post. He stated that the person he was replaced with came to the school as a volunteer, that was an arrangement between him and the Principal.
4.7. He testified that he was informed that he was out of contract at the end of October 2024, and he requested a termination letter, that led to a grievance which he lodged in November 2024.
4.8. After the grievance, the union which represented him there informed him that the issue was resolved that he would be given a contract and indeed he was given a contract.
4.9. He signed the contract but did not keep a copy. He was promised that he would be provisionally placed in Madam Masha’s position.
4.10. The following day he was given another contract to sign from January to April 2025.
4.11. He kept checking if the contracts were submitted, eventually he went to the District where he found that only the January to April 2025 contract had been submitted, and November and December 2025 had not been submitted. He was referred to Labour Relations relating to the missing contracts.
4.12. On the 12th of February 2025 he was called by the SMT and informed that Labour Relations Officials were at the school, and they said that he has a case against the school pertaining to the missing contracts so should stay at home.
4.13. He sent emails to the Labour Relations to enquire whether it was fair for him to be told to stay at home because of the case.
4.14. Later he received the outcome of the grievance from labour relations, he appealed the outcome of the grievance on the 26thh of February 2025. Milton has not responded to him till now.
4.15. He stated that he has been trying to get minutes of the December 2025 meeting unsuccessfully, he stated that the draft is not the same as the other minutes.
4.16. He testified that he was removed from the post that he occupied unfairly, he is protected by LIFO.
4.17. Under cross examination he confirmed that he has a Diploma in education and it’s a secondary school qualification.
4.18. The Respondent submitted that in 2021 Mr. Malungane was appointed substituting a sick teacher, he hid not qualify to be absorbed permanently. Mr. Malungane conceded to this.
4.19. Mr. Malungane conceded that from October 2023 to December 2023 he was appointed on a promotional post, he added that all the contracts are three (3) months with a start and end date even if they know they don’t have a person for that position, this is done in order to avoid commitment by the Department.
4.20. The respondent put it to Mr. Malungane that between July and September 2024 he was appointed on a promotional post against a departmental head post not a Principal post, to which Mr. Malungane responded that in 2022 he was appointed against a Principal Post.
4.21. Mr Malungane stated that he remained when others were taken to Minerva because he was temporal.
4.22. The Respondent submitted that Mr. Malungane was not qualified to be appointed because he is not a Maths teacher. The appointment of Ms. Mbatha indicated that there was no post available at the school anymore.
4.23. The Respondent denied that Mr. Malungane was competing against Mr Radebe for a post and that is why Radebe remained at the school. The subjects taught by Mr. Radebe are a need in the school.
4.24. The Respondent submitted that Mr. Malungane remained at the school after the end of his contract in October 2024 at the advice of his union, to which Mr. Malungane denied and stated that he remained because he had not been given a termination letter.
4.25. The Respondent submitted that Mr. Malungane was misled by his Union regarding the outcome of the grievance.

MBALI PORTIA GWALA (Educator and PL1 Grade 3, SGB Secretary)
5.1. She testified under oath and stated that she knew that Mr Radebe came in February 2024 as a volunteer until the Caretaker Principal informed him that volunteers were not allowed because of the expectation.
5.2. The school received three (3) grade “R” posts, two (2) intermediate growth phase posts that they were supposed to recruit for. Madam Makhondo’s post was added for a substitute for two months. She testified that Mr. Radebe was appointed at that time in Madam Makhondo’s post who was going on leave. Madam Makhondo’s leave was extended until June 2024. When Madam Makhondo came back from leave, Mr. Radebe continued until now. She stated that Mr. Radebe teaches Mathematics.
5.3. Mr Sehopa the caretaker Principal was the Principal at the time. After Mr. Sehopa left, Madam Makhondo was the acting Principal from the 1st of July 2024.
5.4. She testified that the SGB was not informed that Mr Radebe would remain at the school, or that Mr. Malungane was leaving.
5.5. It was agreed that the interviews would be handled by an independent panel because of certain issues at the school.
5.6. She was however called to go to Rambrand Park as the SGB Secretary on the 25th of April 2024 for the shortlisting process. The same panel sat for the interviews on the 2nd of May 2024.
5.7. The IDSO apologised that she was going to be late for the interviews. She only joined when they were about to finish.
5.8. According to the scores Mr Radebe was leading, the panel agreed that they were going to select according to scores.
5.9. The scriber was Ms. Molahlegi and assisted her with the typing of the minutes. The minutes were not signed, there were ratifications.
5.10. On the 16th of January 2025 there were submissions to the GDE, Mr. Radebe’s name was not in the list of submissions. Mr. Radebe’s name only appears on the list of submissions of the 5th of February 2025.
5.11. She testified that according to the minutes, Mr Radebe’s name does not appear, he was appointed as a Maths substitute.
5.12. According to the minutes of interviews, Mr Radebe scored highest for Maths’s substitute however he was appointed under IsiZulu growth post.
5.13. Under cross examination the witness conceded that Mr. Malungane and Mr. Radebe were at the school occupying different temporary post at the same time and that the presence of one did not affect the other.
5.14. The witness conceded that Mr. Malungane was not part of the shortlisting or the interview processes. She added that the department was constantly renewing his contracts.
5.15. The witness stated that she did not understand the one-month contract because the temporary teachers usually sign three (3) months contract. The Respondent submitted in response that, the fact that the witness is not aware of the one-month contract does not nullify the contract. Mr. Malungane was aware of it, and he had in fact signed it.
BONGANI KHUMALO (SADTU SECRETARY)
6.1. He testified under oath and stated that they received a letter from site that there was an issue with their member Mr. Malungane dating back from 2021.
6.2. The question that came to his mind was if this person has been with the employer since then how come he was not absorbed.
6.3. Mr. Malungane informed them that he was appointed against the Principal post, he was moved from that post to Foundation phase.
6.4. They attended the meeting to resolve the matter. In that meeting there were people who had the power to resolve the issues.
6.5. In that meeting, the late Masha’s post was scrutinized as it was vacant, however they were not successful in negotiating for his appointment in that post.
6.6. The respondents’ representatives in that meeting agreed to place him at the new school. The Respondent committed to giving Mr. Malungane a contract. IDSO committed to place him at the satellite school.
6.7. The post that Mr. Malungane occupied in 2021, was a substitute post however it became substantive when the educator retired.
6.8. Other educators who started with Mr. Malungane were absorbed permanently but he has not been absorbed.
6.9. If the school received posts, Mr. Malungane should have been prioritized and placed in one of the posts.
6.10. He was informed that Mr. Malungane was attending at the school, signing the time book daily, he was invigilating, performing all the duties as an employed person. The Principal is responsible for the timetable, so the Principal was aware that he was there working, yet the school said his contract had ended.
6.11. The school should have communicated and informed Mr. Malungane that his contract was coming to an end.
6.12. He submitted that Mr. Malungane had a timetable, was allocated a class. This is a clear indication that there is / was a post available.
6.13. The school had a post after the death of Masha (she was a foundation phase teacher), however there was an issue of qualification, but the IDSO had committed that they could play around with that.
6.14. The Respondent submitted that Mr. Malungane forced himself on the school, the witness denied that and stated that he was allocated.
6.15. He stated that Mr. Malungane was dismissed because he had a case against the school. This is vehemently denied by the Respondent.
6.16. He submitted that movements between the posts were not communicated to Mr. Malungane. The Respondent stated that Mr. Malungane was on fixed term contracts with a start and end date at every given time and because he signed the contracts, he knew what post he was occupying each time he was appointed, if he did not know, it was his responsibility to find out.
6.17. The witness conceded that the meeting of the 6th of December 2024 was about the contract that had come to an end, that is proof to the fact that he knew that his contract had ended.
6.18. The Respondent put to the witness that Mr. Malungane remained at the school even though he knew that his contract had ended, the witness responded that he was informed informally.
6.19. The Respondent referred the witness to page 13, and submitted that Mr. Malungane signed the contract, the contract was a one-month contract, with a start and end date. The witness reiterated that his member was told informally.
6.20. The witness was taken through pages 23, 26, 28 and 29 and a submission was made that all contracts signed by Mr. Malungane had a start and end date, there is no point where he occupied a substantive post.
6.21. The Respondent submitted that the school underwent a restructure, all educators who were temporal in substantive posts, those who were permanent but did not qualify to be in primary school were transferred to high school.
6.22. The witness conceded when he was referred to page 40 of bundle A and the Respondent submitted that all listed must be met for a person to qualify for conversion, Mr. Malungane did not qualify.
6.23. The Respondent submitted and put to the witness that the timetable was drawn by Mr. Mabidikama, the same person who was negotiating for Mr. Malungane with the Principal.
6.24. Reference to Page 16 of bundle A, the Respondent submitted that GDE1 is not a contract, but a process that the teachers have to undergo before they can be appointed.
6.25. She submitted that Mr. Malungane’s GDE1 application for January 2025 was not approved by the Appointing Authority, that is not a contract.
RESPONDENT’S EVIDENCE AND ARGUMENT
MS. SURAYA VAN SCHALKWYK (IDSO) Institutional Development Support Officer

7.1. Ms. Schalkwyk testified under oath and stated that her work involves supporting the Principal and the SGB, with anything related to Labour Peace and fair treatment at the schools. She only started as the IDSO in 2024 and her responses will be based on her knowledge from that time.
7.2. She first saw Mr Malungane at the arbitration, she never met him before. She knew about his case in November 2024 when she received an email from him regarding his grievance against Pholosho where he alleged that he was unfairly treated, and his contract was terminated. Prior to that she was aware of a grievance through SADTU.
7.3. Her first response was that she needed to speak to Madam Makhondo who was the Acting Principal at the time.
7.4. She responded to Mr. Malungane’s email on the 26th of November 2024 the following day after receiving his email and informed him that the Principal unfortunately had a bereavement her mother had passed. She advised him that she would only be able to deal with the matter after the Principal is back.
7.5. Mr. Malungane was not part of the meeting held on the 6th of December 2024.
7.6. Madam Makhondo informed her that Mr. Malungane was appointed in a vacant Department Head Post, the post has been been filled as of November 2024 by an incumbent from outside the school and as such there is no post available.
7.7. The witness gave history that in 2021, the school was a Junior secondary school, in 2023 the school was converted to be a Primary school. All permanent educators were profiled, and some were taken to Minerva. Few teachers were temporary at Pholosho, it was Mr. Ngubane, Mr. Malungane and Pudikabego. They were all appointed against three (3) vacant Departmental Head posts. Two (2) of those DHO posts were filled by Mbatha (outside Pholosho) and the other by MaReddy who was promoted from Pholosho. One was scrapped because it was advertised incorrectly by the department.
7.8. Mbatha was appointed as of the 1st of November 2024 and because the letter of appointment had not been generated yet, Mr. Malungane was given a GDE1 form to extend his contract until the 31st of October 2024, as soon as this letter was generated the incumbent was ready to start on the 1st of November 2024. MaReddy was appointed effectively on the 1st of April 2025.
7.9. She testified that Ms. Masha had been ill and passed away on the 8th of November 2024. Mr. Malungana’s contract had legitimately ended. He took his matter to SADTU, and they advised him to remain at the school despite the contract termination.
7.10. She testified that Ms. Masha was permanent at the school, had passed on, on the 8th of November 2024, her income had already been generated because they get paid on the 20th of every month. When a person falls ill, the department usually appoints a substitute teacher after 20 days, before that, sick leave could be approved. There was no post because Ms. Masha was paid for November 2025.
7.11. Ms. Masha was a Foundation Phase teacher, so Mr. Malungane did not qualify to fill her post.
7.12. In 2024 January to June 2025 the school had a caretaker Principal Mr. Seopa, he was a Principal at Waverly Girls, In June 2025 his school wanted him back.
7.13. In April 2024 Makhondo who was the Deputy Principal fell ill and because she had exceeded 20 days, a substitute was appointed in her post, that was Mr Radebe.
7.14. A decision was made that Makhondo would act in the Principal post for six (6) months until December 2024. Ms. Makhondo was a grade 6 Mathematics teacher, so the substitute has to be a Maths teacher. Whilst acting in the Principals post, she could not teach because she was not skilled in the Management of the school, she needed to focus mainly on the school management. Mr Radebe was later appointed legitimately in Ms. Makhondo’s post.
7.15. She testified that no one gets appointed against the Principals post because the Principals do not have much teaching duties, they have too much administration. Appointing someone against the Principals post would create an anomaly.
7.16. She explained that the appointment of principal from outside usually creates a problem because there is no vacant post, however if the appointment is a person within the school, then a vacancy can get created due to the promotion of that person.
7.17. She testified that at the end of every year all temp posts cease to exist unless it is in a capacity of a fixed term contract, e.g. (maternity leave) which starts in November till end of February the following year.
7.18. All substantive posts come to an end because this could be filled through re-deployment etc.
7.19. Annually around September, there is a document called Post establishment for implementation in January. This document points out how many posts the school qualifies for. It makes a clear distinction between posts, Principal, departmental Head, PL1 etc
7.20. The schools identify posts in excess, there were three (3) HOD posts and one (1) Principal post vacant. One (1) was scrapped, One (1) filled by Mbatha, One (1) filled by MaReddy.
7.21. In that Circular there is always a letter to all temp educators informing them of the termination in December.
7.22. MaReddy was appointed but only to resume duty in her new post in April 2025. She was an HOD.
7.23. At the meeting of the 6th of December 2024, she requested Ms. Makhondo and Mr Batane to give her their allocation based on the post establishment, this was going to assist her in understanding where the shortage could be. Ms. Makhondo indicated that submission had been made, she had filled in the GDE1 for the teachers who qualified for posts as well as the GDE79 for advertising. GDE79 speaks to the vacant substantive posts.
7.24. The acting Principal informed her that there was only one vacant post, that of Ms. Masha, the GDE79 completed was for grade 1 post Sepedi teacher. To-date she has not received the allocations she requested from the deputy Principal and the Acting Principal.
7.25. In 2025, Mr. Batane started acting as Principal for 6 months. The post was advertised according to the rules, the SGB was to make a recommendation. Mr. Batane was recommended to act as the Principal.
7.26. She denied that Mr. Malungane remained at the school because he was not formally informed and stated that when you get appointed, you get a term on the appointment letter. He received a form that he needed to complete to extend his contract. There is no way he would not know that his contract was terminating in October. If Mr. Malungane was not sure, it was his responsibility to find out the nitty gritties of his contract.
7.27. She reiterated that the GDE1 is an application for contract temporary appointment. She stated that at the bottom of the application the HR signs if they approve and are satisfied that there is a post, if there is no post available, they decline and don’t sign.
7.28. She testified that in January 2025, Mr. Batane submitted a GDE1 for Mr. Malungane and because there was no post available, HR declined and did not sign, and that is why the GDE1 is not signed. The teachers cannot commence employment unless there is authorization. Mr. Batane acted in error if he allowed Mr. Malungane to commence without authorization.
7.29. The witness was referred to page 40, 4.2 Eligibility for conversion and asked if Mr. Malungane qualified. She responded that, Malungane was never in a funded substantive vacant post, so he did not qualify.
7.30. She stated that all growth posts are temporary, the school did not have a growth post, and it was not going to be issued. She did not understand why Mr. Batane make a promise. The Principal can’t make promises not knowing what is available and if there is authorization for such, she had explained to the Principal why they were not offered a post.
7.31. She reiterated that Mr. Malungane could not have been in a substantive post

ANALYSIS OF EVIDENCE

8.1. I intend to offer brief reasons in my analysis as per S 138 (7) of the LRA as amended, which states that, within 14 days of the conclusion of the arbitration proceedings- the Commissioner must issue an arbitration award with brief reasons.
8.2. This dispute falls within the purview of Section 186(5) (c) of the Act in that it revolves around the alleged unfair act which arose between the Applicant (the Employee) and the Respondent (the Employer), involving an alleged unfair conduct by the Respondent relating to the provision of benefits to the Applicant.
8.3. The onus in an unfair Labour Practice dispute falls on the Applicant. The Applicant must prove on a balance of probabilities, not only the existence of the labour Practice but also that it was unfair. This was supported in Randles v Chemical Specialities Ltd (D286/10) [2011} 8 BLLR 783 (LC) where the Court held that while the incidence of onus is a substantive law matter, in unfair labour practice claims it is generally accepted that he who alleges an unfair labour practice must prove the allegation.
8.4. Mr. Malungane had the onus to prove on a balance of probabilities that he had a contract with the Respondent after the 31st of October 2024, further he had to prove that he was in a substantive post against the Principal post and that he qualified for conversion to permanent post.
8.5. Mr. Malungane argued that he had signed a contract with the Respondent for November, December 2024 and that the following day he signed another contract from January to April 2025. He referred to the GDE1 document as the contract signed and submitted.
8.6. The Respondent through its witness disputed this and explained that the GDE1 is not a contract but it is an application for contract (temporary) appointment. An educator or recommended incumbent fills it to be considered for a temporary post in the Gauteng schools. She pointed out that the title of the GDE 1 clearly states Application for Contract, and the contract gets issued after approval of the application. Thereafter the HR has established that there is a post available. The GDE 1 is part of the recruitment and recommendation process for temporary educators. After the GDE 1 is submitted, the District Office issues an official contract of appointment if the application is successful.
8.7. Mr. Malungane failed to demonstrate on a balance of probabilities, that he in fact had a valid contract after his previous contract ended on 31st of October 2024. He contended that he remained at the school during November and December 2024 because he had a contract, arguing that, had he not been appointed, he would not have invigilated examinations or issued learner reports.
8.8. However, none of Mr. Malungane’s assertions established the existence of a contract. In the absence of a duly signed contract between Mr. Malungane and the Respondent, it is immaterial what assurances may have been made to him. An appointment can only be recognised where the terms are reduced to in writing and signed by the legitimate parties. Only then can it be said that a binding contract of employment exists.
8.9. Mr. Malungane further argued that he remained at the school because he was not given a letter of termination at the end of his contract. The Respondent submitted, however, that Mr. Malungane was fully aware that he had signed a one-month contract, which clearly stipulated both a start and an end date. Although no letter of termination was issued to him, he was verbally informed that his contract had ended. Mr. Malungane maintained that such informal notification was insufficient and that he had expected a formal letter of termination.
8.10. If an employee signs a fixed term contract with a clear start and end date, in such cases, the employer is not legally required to issue a separate letter of termination, because the contract itself already specifies when it ends. Buthelezi v Municipal Demarcation Board (2005) 2 BLLR 115 (LAC) the LAC confirmed that a fixed term contract terminates upon expiry of the agreed period. The employer cannot terminate before the expiry date unless the contract allows it, and equally, no separate termination action is required when the agreed period ends.
8.11. Mr. Malungane advance an argument that when he was appointed, he was appointed to a substantive post, specifically against the Principals post. The Respondent vehemently denied this assertion, stating that it was not possible for him to have been appointed against a Principals post, as the Principals typically do not teach due to the extensive administration and management responsibilities associated with their role.
8.12. Mr. Malungane further alleged that Ms. Mbatha had taken his post. The Respondent explained that Ms. Mbatha held a substantive post as an intermediate senior phase teacher. She referred to PAM document, which sets out the criteria, qualifications, statutory requirements, and experience necessary for appointment. Ms. Mbatha had previously taught in the foundation phase at her school and thus met the qualifications required for the position. Additionally, she had impressed the interviewing committee, which led to her recommendation for the post. The Respondent emphasized that Mr. Malungane’s experience and qualifications could not be fairly compared to Ms. Mbatha. Accordingly, the claim that Mr. Malungane held a substantive post is unfounded.
8.13. Mr. Malungane alleged that in 2021 when he was first appointed, he was a substitute for an educator who was ill, and later retired, and he argued that at that point he was eligible for permanent appointment. In Eskom Holdings Ltd vs Solidarity o.b.o. Anusha Govender and others (JR265/20) (judgement 2 November 2023. Court held that recruitment and appointments are exclusive preserves of the employer. When an employer appoints one of its employees to act either in a vacant position or in another employee’s stead, there is no automatic obligation for permanent appointment.
8.14. Further Section 191 (1) of the Labour Relations Act (LRA) 1995 provides that a dispute about unfair labour practice must be referred to the CCMA or relevant Bargaining Councils within 90 days of the incident. If indeed Mr. Malungane felt aggrieved by the actions of the respondent at that time, he had to refer the unfair labour practice within the prescribed period or apply for condonation.
8.15. Having considered all the evidence, Mr. Malungane has not established, on a balance of probabilities, that he held a contract beyond 31 October 2024, that he had an expectation of continued employment, or that he was appointed to a substantive post. The Respondent’s version is credible, consistent and in accordance with established procedures and Labour law requirements.
8.16. I accordingly make the following award

AWARD

9.1. The Applicant’s claims regarding the existence of a contract, the alleged lack of termination notice and his purported substantive post are dismissed.
9.2. No order as to costs.