IN THE ELRC ARBITRATION
BETWEEN:
NATU obo Mthethwa S S T “the Applicant”
And
THE HEAD OF DOE KwaZulu Natal “the Respondent”

ARBITRATION AWARD

Case Number: ELRC1025-24/25KZN

Date of arbitration: 25 February 2025, 16 April 2025, 12 August 2025, 22 September 2025 & 27 October 2025.

Date of award: 15 November 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 hearings were evidence was heard were held at the Phongola Akademie and at the Zululand District Offices in Vryheid on 22 September 2025 and on 27 October 2025 respectively.
2. The Applicant, Mr. Sboniso Simphiwe Thomas Mthethwa was present and represented by Mr. Sibusiso Mathabela, a National Teachers’ Union Official. The Respondent, the Head of Department of Education in KwaZulu Natal, was represented by Mr. Mzuthini Sibanyoni, its Deputy Director for the Human Resource Management Section. The parties provided documentary evidence and called witnesses to testify. The parties were given up to the 3rd of November 2025 to submit closing arguments.
3. The proceedings were held in English and IsiZulu and digitally recorded.
4. The services of an interpreter were provided by Mr. S L Mthembu, a part-time interpreter of the ELRC.

ISSUE TO BE DECIDED

5. I am required to determine whether there was procedural and substantive unfairness dismissal of the Applicant. The Applicant sought reinstatement to his post.

BACKGROUND

6. The Applicant was temporary appointed by the Respondent as an academically qualified but professionally unqualified post level 1 Educator in a substantive vacant post from June 2017 until he was professionally qualified or until a suitably qualified Educator was found.
7. The Applicant registered with an institution of higher learning during his tenure as a temporarily employed Educator but did not complete his professional educator qualification for various reasons. On 30 September 2024, the Respondent issued a letter terminating the Applicant’s employment at the end of November 2024 if he could not provide professional educator qualification. The Applicant worked until 13 December 2024. Aggrieved about termination of his employment, he referred an unfair dismissal dispute to the ERLC on 09 January 2025.
8. The ELRC then set the matter for conciliation on 03 February 2025 but it remained unresolved. The Applicant then requested the matter to be arbitrated and the ELRC then scheduled the matter to be arbitrated before Commissioner S A Jazbhay on 25 February 2025. The Commissioner issued a directive to the parties to provide certain documentation and to hold a pre-arbitration meeting by 14 March 2025.
9. The ELRC then set the matter for arbitration before the same Commissioner and the outcome was a Jurisdictional Ruling stating that the ELRC does have jurisdiction to entertain the matter.
10. The ELRC then set the matter for arbitration before on 12 August 2025, 22 September 2025 and 27 October 2025 as shown on paragraph [1] to [4] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

11. The Respondent Representative called 2 witnesses who testified under oath. The Applicant Union Representative called the Applicant who testified under oath. The parties exchanged bundles. I only summarized evidence which I regarded to be relevant to the dispute and which helped me to reach my decision as guided by section 138 of the LRA as amended.

The Respondent’s Case

12. The Respondent Representative, Mr. M Sibanyoni called his first witness, Mr. Vusumuzi Bhekani Ngidi who testified under oath as follows: He was the Acting Director in the Respondent’s Human Resources Department the Zululand District. He was responsible for the appointments and terminations of educators in schools. He handled promotions and exits of educators. He was involved in the development of HR policies for school based and office based staff in the persal system.
13. The appointment of unqualified educators was regulated by the Employment of Educators Act. A professional Educator must have a Bachelor of Education Degree or a Basic Degree with PGCE and be registered with SACE.
14. PAM provided a definition of a temporarily employed educator in a substantive funded post. In 2010 to 2011, circulars were issued to regulate conversion of professionally unqualified educators while protected to professionally qualified ones. Temporal Educators occupied substantive vacant posts without qualified Educators. PAM had guidelines. They enjoyed protection as per the circulars issued in 2010 and 2011. There was no protection anymore. Temporal Educators were aware of their employment conditions as appointment letters had conditions of employment and circulars 99 and 100 of 2010 clarified the conditions and protection. The Applicant’s termination letter gave him 30 days’ notice.
15. HRM 100 of 2011 directed staffing of schools including surplus, unqualified and temporary educators. The circular focused on protection extended to temporary educators who were enrolled at tertiary institutions for teaching qualifications. Circulars were read in conjunction with Collective Agreements and were there to clarify. The Applicant was given an opportunity to state if he was suitably qualified and registered with SACE.
16. On 10 April 2013, the Applicant signed an assumption of duty form and the employment would terminate on 31 December 2013. This happened annually for temporary educators.
17. According to PAM procedures (B.3.2.1.1) which temporary educators need to familiarize themselves with, the Respondent would not be able to appoint the Applicant.
18. When the Applicant was appointed, he did not qualify professionally as an educator but the Respondent appointed a professionally unqualified educator where a professionally qualified one did not exist. In 2011 and 2012, the scope covered educators with matric who had to be professionally qualified. It is not applicable to the Applicant as it was a framework.
19. The Applicant could not work without knowing terms and conditions of his employment. The assumption of duty form had a start and end date and communicated his employment type. On the persal system, the Applicant’s employment is indicated as temporary employment and he kept being reappointed after the end dates.
20. 30 days were reasonable for the Applicant to provide his qualification documents. The Applicant was given 8 years to get a qualification which was more than reasonable time. The Respondent was taking steps as they did with the Applicant with other academically qualified and professionally unqualified temporary educators.
21. Professionally unqualified temporary educators were appointed on a temporary basis if there was a shortage of skill until a professionally qualified educator was sourced. PAM stipulated when professionally unqualified educators could be appointed.
22. Mr. Muzi Sibanyoni then called his second witness, Mr. Kaizer Bhekokwakhe Nxumalo who testified as follows: He was the principal for the Phongola Intermediate School from 1998. Amongst his HR duties were to ensure that the school was properly and adequately staffed to cover the curriculum of the school. Before he could appoint but of late, he only recommended as a member of the SGB. He recommended the Applicant to be an educator temporarily for the agricultural science subject. He did not have an educator for grades 10, 11 and 12. The Applicant was not suitably qualified when he was recommended. He was academically qualified but not professionally qualified. The Applicant’s appointment was temporal up until he qualified as an educator if the Respondent allowed it. The Applicant was told to acquire teacher qualifications.
23. Circular 100 of 2011 was shared with those affected by it but the Applicant had not arrived at the school. The Applicant did not meet the requirements of PAM B 3.2.1.1 (a), A recognized three-year qualification which includes professional teacher education, at least 2 subjects teaching knowledge and registration with SACE as a professional educator. The teaching of two subjects was discussed with him and he said he would rather leave it.
24. He was responsible for the Applicant signing contracts. Before, he the Applicant would be automatically cut off, the principal had to write to the Respondent informing them that the Applicant was still at the school. He used to encourage them to enroll as they did not know what would happen next.
25. In December 2023, the Applicant was declared a surplus at the school. He was told not to declare the Applicant a surplus but to wait until he was replaced by a professionally qualified teacher and the Applicant did not have a problem with that arrangement. He did not create an expectation that the Applicant would be made permanent.
26. The educator that replaced the Applicant had a Bachelor of Education Degree from the University of Fort Hare and majored in Life Sciences and Agricultural Science. Wushe was registered with SACE.
27. He considered the termination of the Applicant fair as he was given enough time to change his condition. The school deserved an educator that was properly qualified for the given subject. Teaching was not only academic but an educator had to take care of other aspects of a child. Such skills were acquired through a professional qualification. Teaching needed to be done in totality. Mr. Nhleko had a Diploma, BTech degree and a Masters Degree in Agriculture but was pushed out by Mr. Alberto from Ghana. Another lady acquired the PGCE and qualified.
28. Under cross examination, Mr. Nxumalo testified as follows: He recommended a candidate for appointment with the SGB but the Respondent appointed. The SGB recommended.
29. In the case of the Applicant, the post was critical and the Respondent gave him the green light to employ on a temporary basis until a suitably qualified educator was found. Many people were interested but he recommended the Applicant as he knew him because he had been a substitute teacher before. The Respondent initially declined until he motivated and the appointment of the Applicant was approved six months later.
30. The PAM document was used for people employed on a permanent basis but the Applicant did not qualify. Hence, he requested the relaxation of the requirements to get someone to keep the ball rolling whilst the Respondent found a suitable educator.
31. Circulars 98 of 2010, 99 of 2010 and 100 of 2011 dealt with temporal educators. Circulars were not law but directives issued to address certain scenarios in a given department at a given time. He disagreed that the circulars in question were an improvement of the one before. The circulars in question did not apply to the Applicant. Circular 100 applied with the Applicant.
32. The Applicant worked from 2017 to 2024 at his school. The circulars he was referred to did not apply to the Applicant. There was none for 2024 to 2025.
33. He declared posts to the Respondent annually including the ones occupied by temporary educators like the Applicant. A protected temporary educator were the ones who were studying towards a professional teacher qualification and employed by 31 December 2010 and this definition did not apply to the Applicant.
34. He denied that it was not communicated to the Applicant that he should have qualified if he wanted to keep his post. The Applicant was a shop steward at the school. He had signed a contract stipulating what he was expected to do and not expected to do. The Applicant together with others, were called by the principal and it was explained to them what to do to be protected. When the Applicant tried to register, he faced challenges and they made an effort to assist him.
35. As a Union Representative at the school, the union was not consulted about the termination of the Applicant’s employment. After November 2024, the Applicant continued to report to school but he did not do any work. The Applicant’s duties were handed over to his HOD. The last time the Applicant was at the school, he spoke with the Ward Manager.
36. PAM doc regulated employment of temporary educators and if one is employed temporarily, there will be time to vacate the post. The Applicant was not a protected temporary educated as envisaged in circulars 90, 99 and 100.
37. He signed documentation indicating to the Department details of a post the Applicant was occupying.
38. The Respondent’s closing arguments filed on 03 November 2025 were considered in the analysis of this matter.

The Applicant’s Case

39. The Applicant’s Union Representative, Mr. S V Mathabela called the Applicant as his witness and he testified under oath as follows: He received a termination letter which required him to provide his qualifications. He was employed at the Phongola Intermediate School. His highest qualification was a BTech Degree in Agriculture. The letter required him to submit teaching profession qualification documents in 30 days or his contract of employment would be terminated. He was never told to acquire a professional teaching qualification before. He needed a PGCE to be professionally qualified educator as he had a four-year degree. To acquire a PGCE, it took 1-year full time and 2 years part time. Since he was working, he needed 2 years to acquire the PGCE.
40. He could not be certain if he was temporary in his employment but he was temporarily employed for +- 8 years. In 8 years, he had not been told to provide a professional educator qualification. He tried to get a professional teacher qualification via UNISA. Given the opportunity, he would go and study. The letter denied him the opportunity to meet the requirements.
41. His dismissal was not fair. It did not make sense that his termination was linked to his qualifications. No one was dismissed due to qualifications after his termination. A relative of the Principal was appointed to teach life sciences so that they could be absorbed. Later on, Ms. Wushe was appointed to teach agriculture.
42. Since he performed well, what led to his termination was due to some bad blood between him and the Principal. He did not understand when the Principal declared him a surplus and later withdrew in 2023 when he was the only agriculture educator. In 2024, he was chosen by Educators to represent them at the SGB. Prior to that, educators had no photocopy machine and had no access to ink as they were told it was reserved for exams. Educators had to pay their own money. They only accessed photocopy machines if the Principal wanted.
43. When he asked for documents from the old SGB Committee as dictated by the SGB procedure, there was tension between him, other educators and the Principal. The documents were not received. They recommended a budget, presented it to parents and it was adopted. The Principal interpreted that as an attack. He received a termination letter in the year he served at the SGB.
44. He could not confirm whether his contract had a start and end date as nothing was written. He just saw his dismissal letter stating his termination was on end of November 2024. He knew his start date but he was not told when his employment would end. He was not aware that he was renewing contracts yearly.
45. He knew that a temporary person was employed on a fixed term in writing. When he started in 2017, he was given an assumption of duty document and got paid monthly. His contract was never terminated until November 2024. He did not sign a contract. It was not in any contract that he had to upgrade his qualifications to be permanently employed.
46. He was never called to a hearing before he was dismissed. He was not called to any meeting where he was asked to submit any qualifications. There were still academically qualified but professionally unqualified educators still employed by the Respondent.
47. The case of Gcaba versus the Respondent in page 19 of the Respondent Bundle was not relevant to this matter as Gcaba was employed in the time of the circulars 98, 99 and 100. The Employer was the HOD and yet a Director at District level wrote him a termination letter. Procedure was not followed.
48. Under cross examination, the Applicant testified as follows: He never understood his termination letter completely and did not ask for clarity as he did not see there was a person’s name under enquiries. He asked Mr. Manana, the Ward Manager. He was a temporal educator which meant he was not permanent. He did not understand the Respondent’s procedure as he did not receive any induction.
49. He tried to upgrade with UNISA and took up life sciences as agriculture was not offered at the time. However, the practicals were at North West which was not practical for him. In 2022, agriculture was introduced at UNISA but he was not accepted. Hence, he was professionally unqualified but he did not understand what that meant. He could not apply for promotion posts as he did not meet the minimum requirements of experience, professional teaching qualification and a SAICE registration. He never tried to apply for a SAICE registration. He did not know that SAICE gave a license to teach.
50. He did not follow any rules of the Respondent that were written. He did not know the Employment of Educators Act and PAM but he heard of them. He did not know what informed the salary he got paid. He had not heard of REQV. He worked with no terms and conditions. What he did was informed by instructions from his supervisor. He knew that one worked with the ATP daily.
51. He had never seen his complete Assumption of Duty (AOD) form. His employment with the Respondent could be confirmed by his pay slips. He did not understand the code of conduct for dismissal he was referred to in his evidence in chief. So any question from it was not for him to answer. He would not reveal other academically qualified educators. It was put to him that 11 other academically qualified educators were dismissed with him.
52. The Respondent should have followed the correct procedure of asking him to submit qualifications and if not done, call him to a hearing and then dismiss him if found guilty.
53. It was put to the Applicant that he was terminated by operation of the law as he did not meet the requirements of a suitably qualified educator since the Respondent found one and he did not comment.
54. In re-examination, Mr. Mthethwa testified as follows: After receiving his termination letter, he left it at Mr. Manana’s office. He saw him when he came to the school to monitor an exam. The Union was not involved. After he referred his termination letter to his union, he was asked if he had received a letter requesting his qualifications prior and he responded that he did not. The letter from the Department was a black and white copy. Other educators got color copies from the Respondent.
55. He disputed that he was temporal when he was dismissed as the duration was long. He thought he was temporary and protected as he did all that was done by other teachers. Promotion had no relevance in this matter. A contract existed even when there was no document. The ATP was the annual teaching plan which set the pace on what would be taught over a certain period with dates. It is used in class. The ATP could be considered a condition of employment.
56. He did not interact with the SGB Chairperson on administrative issues.
57. The closing arguments filed by the Applicant Union Representative, Mr. SV Mathabela were considered in the analysis of this matter.

ANALYSIS OF EVIDENCE AND ARGUMENT

58. The Applicant conceded that he was employed as a temporary educator. He also testified that he tried to acquire a professional qualification at the University of South Africa and at the University of Swaziland but could not acquire the qualification for various reasons. At the same time, the Applicant expected to be kept in employment until he had acquired the qualification. Section 186(1) (b) of the LRA stipulates that a dismissal is when an employee employed in terms of a fixed term contract reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer did not renew it.
59. The employment of the Applicant was temporary as the Respondent needed to avoid a situation where there was no educator for the agricultural science subject in front of learners in the absence of a professionally qualified educator. Sections 13 and 14 of the Employment of Educators Act are not applicable in the appointment of the Applicant. I am persuaded that the Applicant was aware that for him to be permanently employed, he had to acquire the PGCE qualification and register with SAICE. This is why he attempted to acquire the PGCE qualification at UNISA and at the University of Swaziland.
60. The Applicant testified that prior to 2022, UNISA did not offer Agricultural Science as a subject in educator professional qualification and he went for life sciences instead but he could not continue as the practicals had to be done at North West province which was not practical for him.
61. When UNISA eventually offered Agricultural Science in a professional educator qualification, he was not accepted after he tried to enrol. The Applicant could not acquire his professional educator qualification from the University of Swaziland as well. As far back as April 2013, the Applicant worked as a substitute educator in the same school and that was the reason the Principal recommended him to take over the teaching role at the school temporarily whilst there was no professionally qualified educator.
62. In 2015, the Applicant met the requirements for the BTech Degree in Agriculture: Crop Production from the Tshwane University of Technology. The Applicant could have gone for the B Ed Degree majored in Agriculture and another related subject like life sciences. After completing his BTech Degree, he could have gone for the PGCE soon thereafter. The decisions of the Applicant could not be allowed to prejudice the Respondent by forcing it to keep a professionally unqualified educator when a qualified one was found. The actions of the Respondent must put the welfare of the learners first.
63. Considering the additional tasks, the Applicant put his energy on whilst temporarily employed at the Phongola Intermediate School in the 8 years from 03 June 2017, he could have redirected that energy to obtaining his PGCE. If he did so earnestly and still failed in the 8 years of his employment, this should not reflect badly on the Respondent when it found a suitably qualified educator in line with clause 4.2 of ELRC Collective Agreement Number 4 of 2018 and Chapter B 3.1.7 and 3.2.1 of PAM.
64. Circulars 98 of 2010, 99 of 2010 and 100 of 2011 were issued for a specific period to deal with the protection of temporary educators who had been in the employ of the Respondent as at 31 December 2010. There were timelines involved and a requirement for an agreement to be signed between the affected temporary educator and the Respondent. If the Applicant felt that he was protected as envisaged in the circulars, he should have approached the Respondent at soon after his appointment, state his intentions, register and sign the agreement annexed to the circular he deemed applicable. However, this was not done.
65. Mr. K B Nxumalo testified that he informed the Applicant together with other temporary educators to enrol and acquire their professional qualifications as they did not know what would happen about their employment in the future. He also testified that he supported the Applicant when he faced challenges with respect to acquiring his professional qualification. Mr. Nxumalo also recommended the Applicant to be appointed and motivated when the Respondent would not hire him. There was no evidence that the Principal initiated the termination of the Applicant due to his Shop Steward and SGB activities. Even if there was, that would be a separate issue which would not change the situation of the Applicant and prevent the employment of a suitably qualified educator at the Phongola Intermediate School.
66. Based on the above, it is my finding that the termination of the Applicant’s employment was substantively fair.
67. With regards to procedural fairness, the Applicant was given 30 days’ notice in line with Section 37 of the BCEA. In temporary employment where termination takes place on the occurrence of a certain event, there is no need to consult a union as in a situation where charges are contemplated for a Shop Steward. Within the 30 days’ notice, the Applicant could have contacted his union and engaged the Respondent prior to the expiry of the notice. It is my finding that the termination was procedurally fair.

AWARD

68. I hereby find that the termination of the employment of NATU obo Mthethwa SST by the Head of DOE-KwaZulu Natal was procedurally and substantively fair.
69. Accordingly, the Applicant’s Case is dismissed.
70. There is no order as to costs.

L Mkhize
Arbitrator

15 November 2025

ELRC1025-24/25 KZN