19 June 2026 – ELRC1158-25-26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY
Case No: ELRC1158-25-26GP

In the matter between

VUYO NDATA & 6 OTHERS Applicant

and

DEPARTMENT OF HIGHER EDUCATION & TRAINING Respondent
SOUTH-WEST GAUTENG TVET COLLEGE

ARBITRATOR: Nakedi Machaka
HEARD: 18 March 2026, 23 April 2026, and 27 May 2026
FINALISED: 27 May 2026
DELIVERED: 19 June 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(1)(b) – Unfair Dismissal. Failure to establish dismissal ousts the ELRC’s jurisdiction to entertain the fairness or unfairness of the dismissal.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration hearing was convened under the auspices of the Education Labour Relations Council (ELRC). The hearing was held in person at the employer’s premises on 18 March 2026 and 23 April 2026. On 27 May 2026, the hearing was held via the Microsoft Teams virtual platform. The arbitration hearing concluded on 27 May 2026.

[2] The applicants attended the arbitration hearing and were represented by Themba Mtameka of Nehawu. The respondent, South-West Gauteng TVET College, was represented by Shawn Carney, the college’s Labour Relations Officer.

[3] The parties referred to documentary evidence that was cited during their respective testimonies, as confirmed by the digital recordings of the arbitration hearing.

[4] The parties were requested to submit written closing arguments and directed to do so by 03 June 2026. Both parties complied. I have considered their arguments in arriving at my findings, without necessarily repeating them verbatim.

[5] The proceedings were conducted in English and digitally recorded. Interpretation services were not required.

PRELIMINARY ISSUES

[6] The parties raised no preliminary issues.

BACKGROUND TO THE DISPUTE

[7] The applicants were employed by the respondent as lecturers on fixed-term employment contracts of three (3) months, which ended on 31 December 2025.

[8] After their fixed-term employment contracts expired, the applicants referred a dispute to the ELRC, alleging unfair dismissal. At the first arbitration hearing on 08 March 2026, the applicants clarified that they are alleging unfair dismissal under section 186(1)(b) of the LRA. Specifically, they allege that they reasonably expected the respondent to renew their fixed-term employment contracts on the same or similar terms, but the respondent failed to do so.

ISSUE/S TO BE DECIDED

[9] Whether the applicants held a subjective expectation that their contracts would be renewed?

[10] Whether the expectation was reasonable?

[11] Whether applicants were dismissed in terms of section 186(1)(b) when their employment contracts expired on 31 December 2025 because the employer did not renew their fixed-term contracts?

[12] If dismissal is established, I must determine whether it was fair or unfair. If I find any unfairness, I must determine the appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENT
APPLICANTS

[13] Four witnesses, Lungile Dlamini, Lindiwe Mapukuta, Andre Schlemer, and Moloi Molefe, gave testimony in support of the applicants’ case. The summary of the material aspects of the applicants’ evidence and argument is as follows:

Applicants’ First Witness-Lungile Dlamini:

[14] Ms Lungile Dlamini testified that she was employed as a Tourism-NATED Lecturer at Technisa Campus from February 14, 2024, and that her fixed-term contract was renewed approximately every three months until 31 December , 2025. She stated that renewals occurred automatically, without interviews, and that she expected her contract to be renewed for the 2026 academic year, consistent with established practice.

[15] Dlamini testified that she taught Travel Services N4–N6 and Travel Office Procedures N6, and that she held specialised industry certificates (Galileo Reservations and Domestic Fares and Ticketing) that made her particularly qualified to teach those subjects. She further contended that student results and enrolment numbers improved significantly during her tenure.

[16] To support the applicants’ case, documents were introduced showing previous fixed-term contracts for other lecturers, particularly Mr. Wellington Ndata. The applicants sought to demonstrate a pattern of continuous employment and repeated renewals, creating a reasonable expectation of further renewal.

[17] Dlamini testified that she received a letter in December 2025 reminding her that her contract would expire on 31 December 2025. She argued that the letter was merely a reminder of the contract’s expiration, not a termination notice, citing an email from management that expressly stated the letter was “not terminating the contract” but merely reminded employees of the expiration date.

[18] She denied receiving prior notice of funding constraints or a lack of work, and maintained that the Tourism NATED program at Technisa Campus would continue to operate in 2026 with increased student enrolment. She alleged that her subjects were reassigned to other lecturers, including those who allegedly lacked the specialized qualifications she possessed. She considered the decision not to recall her, while recalling other contract lecturers, to be unfair and lacking transparency.

[19] Dlamini sought reinstatement, retrospective remuneration from January 2026, and a permanent appointment, arguing that lecturers with more than twelve months of service should be absorbed into permanent positions.

[20] During cross-examination, the respondent challenged her testimony as follows:

 Arguing that contract renewals depended on student enrolment numbers.
 Contending that there were insufficient students to justify renewing her contract.
 Pointing out that she had received written notice that her contract would expire.
 Challenging her evidence regarding student numbers and her employment commencement date.
 Arguing that the expiry of a fixed-term contract did not constitute dismissal.
 Suggesting that other lecturers with equivalent qualifications existed and that her non-renewal was not unfair.

[21] Dlamini maintained that student numbers existed, that other lecturers had been recalled while she had not, and that the college failed to follow a fair and transparent process in deciding which contract lecturers would be re-employed.

[22] The central dispute, therefore, concerns whether the applicants had a reasonable expectation of renewal and whether the non-renewal of their fixed-term contracts constituted unfair dismissal.

Applicants’ Second – Witness Lindile Mapukata:

[23] Mr. Mapukata, a Lecturer at George Tabor Campus, testified about a motivation letter (page 37 of the bundle). He stated that although he provided a template and information to Ms. Maphale, an administrator, she was the actual author of the document. The Commissioner raised significant concerns about the admissibility of this testimony, noting that it constitutes hearsay. The Commissioner emphasized that Ms. Maphale must testify personally to authenticate the document, as the witness cannot attest to the content of another person’s work. Following this procedural guidance, the parties requested a brief adjournment to discuss the matter and determine the necessary next steps for the proceedings.

[24] Mr. Mapukata initially provided evidence regarding a document (page 37) that motivated the renewal of lecturer contracts in 2025. The applicants subsequently withdrew this evidence, as they conceded that the motivation successfully achieved its purpose for that period.

Applicants’ Third Witness – Andre Schlemer:

[25] The hearing then proceeded with testimony from Mr. Schlemer, the Deputy Principal of Corporate Services. He clarified that the notices sent to applicants were reminders of expiring contracts, not dismissals. He explained the distinction between permanent government-funded (Persal) posts and college-funded contingency positions, emphasizing that contract lecturers are hired temporarily to address operational needs, such as maternity leave or enrollment fluctuations, rather than to fill permanent, substantive posts.

Applicants’ Fourth Witness – Moloi Molefe:

[26] Mr. Molefe stated that he is a PL1 Lecturer at South-West Gauteng TVET College and a NEHAWU shop steward. He referred to page 1 of the respondent’s bundle of documents and stated that the employer terminated the employment contracts for positions that were budgeted for. He stated that, because the positions are fully funded by the Department of Higher Education and Training, there was a reasonable expectation that the applicants’ fixed-term employment contracts would be renewed. However, he conceded that he is not involved in the college’s budgetary issues and therefore lacks knowledge of the college’s budget.

Employer/Respondent:

[27] One witness, Dr. Mapaseka Muthumuni, gave testimony in support of the employer’s case. The summary of the material aspects of the evidence and argument presented by the employer follows:

[28] Dr. Mapaseka Muthumuni stated that she serves as the Acting Head of Department at South-West Gauteng TVET College’s Technisa Campus.

[29] Dr. Mapaseka Muthumuni’s evidence was that Lungile Dlamini’s contract expired on December 31, 2025, and was not renewed because of reduced student enrollment. She denied that the college had made any verbal or written undertakings to automatically renew contracts. She explained that the teaching responsibilities previously performed by the applicants were absorbed by existing permanent staff. She further testified that no external employees were recruited to replace the applicants.

[30] She stated that the college applies the same principle across all its colleges regarding the employment of additional lecturers, meaning that additional lecturers will be engaged only when the number of enrolled students justifies it. She stated that the letter issued to the applicant was not a dismissal letter; it was simply a reminder that their three (3)-month fixed-term contract was expiring on 31 December 2025.

ANALYSIS OF EVIDENCE AND ARGUMENT
Onus
[31] In IMATU and another v City of Johannesburg Metropolitan Municipality and others (JA 49/2013) [2014] ZALAC 3; [2014] 6 BLLR 545 (LAC) (handed down on 4 March 2014), the LAC confirmed that the onus rests on the Employee to prove a reasonable expectation that the contract would be renewed. That onus is to be discharged on the balance of probabilities. In determining whether the non-renewal of the Applicant’s contract amounted to a dismissal as envisaged in section 186(1)(b) of the LRA, I considered all the evidence before me, as well as the relevant provisions of the LRA and leading case law.

Legal principles applicable to a dismissal as envisaged in section 186(1)(b) of the LRA:

[32] In University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC), the LAC held that the test for reasonable expectation was two-fold. The LAC first considered whether the Employee actually expected the contract to be renewed, and second, whether that expectation was reasonable.

[33] In Motlaase v CCMA and others (JR 1802/2017) [2020] ZALCJHB 186 (handed down on 18 June 2020), the facts are briefly that the Respondent embarked on a restructuring exercise, which resulted in a moratorium on permanent appointments. However, crucial positions were filled on a fixed-term basis. The Applicant was employed by the Respondent on a fixed-term contract from 1 September 2016 until 28 February 2017. He was employed as a process control system technician (PCST) at the Respondent’s Randfontein operation in the cement division. The PCST position was regarded as a critical position. The Applicant’s contract automatically terminated on 28 February 2017 due to the effluxion of time. It was not renewed by the Respondent, and the Applicant subsequently referred an unfair dismissal dispute to the CCMA. His case was that he had a legitimate expectation that his contract would be renewed, but it was not renewed.

[34] The Commissioner addressed the test for determining whether a reasonable expectation existed, which is two-fold:

a) whether the Employee actually expected the contract to be renewed; and
b) whether the expectation was reasonable.

[35] The Commissioner held that the Applicant had an expectation that his contract would be renewed, but that expectation was based solely on his hopes and was therefore unreasonable, as no expectation was created that his contract would be renewed. The Court held that the termination of the Applicant’s contract did not constitute a dismissal as envisaged in section 186(1)(b) of the LRA, and the Applicant’s case was dismissed.

[36] In NUM obo Mpaki v CCMA and others (JR 1983/2014) (2016) ZALCJHB 354 (handed down on 9 September 2016), the LC held that the second part of the inquiry into a reasonable expectation is whether the subjective expectation, when objectively assessed, is reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined by evaluating all surrounding circumstances, including the significance or otherwise of the contractual stipulations. The Court identified a number of factors that may influence such a finding, namely:

    a)  agreements;
    b)  undertakings by the Employer;
    c)  custom or practice in regard to renewal;
    d)  the availability of the post;
    e)  the purpose or reason for conclusion of the fixed-term contract;
    f)      inconsistent conduct;
    g)  failure to give reasonable notice;
    h)  the nature of the business.

[37] The list is not necessarily exhaustive, and the circumstances will vary from case to case.

[38] In Pik-it-Up Johannesburg (Pty) Ltd v SALGBC and Others (JR1834/09) [2011] ZALCJHB 53; (2011) 32 ILJ 2728 (LC) (28 June 2011), the court held that determining whether a dismissal occurred in a dispute concerning the non-renewal of a fixed-term contract remains critical, as it is a jurisdictional fact upon which the CCMA or the bargaining council can entertain the dispute. Under section 192 of the LRA, read with section 186(1)(b), the employee bears the onus of showing that he or she was dismissed because the employer failed to renew a fixed-term contract, or renewed it on terms less favourable than those that previously existed, despite a reasonable expectation of renewal. The employee discharges this onus by showing that, despite the contract having come to an end by effluxion of time, he or she had a reasonable expectation that it would be renewed, and that the employer failed to do so. Once the employee has discharged this onus, the onus shifts to the employer to show that the termination of the contract was for a fair reason.

[39] In SA Rugby Players’ Association (SARPA) and others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd and Another [2008] 9 BLLR 845 (LAC), the Labour Appeal Court, per Tlaletsi JA, held that when jurisdiction is in issue, the test to apply is the following:
“[39] The issue that was before the arbitrator was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The
significance of establishing whether there was a dismissal or not is to determine
whether the CCMA had jurisdiction to entertain the dispute. It follows that if
there was no dismissal, and then the CCMA had no jurisdiction to entertain the
dispute in terms of section 191 of the Act.”

Applying the legal principles to the applicants’ claim of dismissal as envisioned in
section 186(1)(b)(i) of the LRA:

[40] The essential factor in determining whether dismissal as envisaged in section 186(1)(b) of the LRA has occurred is whether the employee’s claim that she expected the contract to be renewed was objective, that is, whether the circumstances were such that any reasonable employee would have expected the contract to be renewed on the same or similar terms. However, under the above-outlined legal principles, the first requirement is that the employee must have subjectively expected the contract to be renewed.

[41] It is important to note that the applicants’ claim for renewal is based on section 186(1)(b)(i), namely, that they reasonably expected the respondent to renew their fixed-term employment contract, but the respondent failed to do so.

[42] In this matter, the applicants expected that their contracts would be renewed. I therefore find that the applicants held a subjective expectation that their fixed-term employment contracts would be renewed. What remains to be determined is whether the applicants, in fact, acquired a reasonable expectation as contemplated by section 186(1)(b) of the LRA.

[43] In determining the reasonableness of the applicants’ expectation, I considered that the applicants based their claim on the expectation that their fixed-term employment contract would be renewed upon its expiration. The grounds informing the applicants’ expectations can be summarised as follows:

    a)  That the employer did not consult them before issuing the letters 
            reminding them of the expiration date (31 December 2025) of their fixed-
            term employment contracts;
    b)  That the respondent's letters reminding them of the expiration date of 
            their fixed-term employment contracts constituted unfair dismissal.
    c)  That applicant claimed that the positions were fully funded by the 
            Department of Higher Education and Training, the applicants believed 
            they had a reasonable expectation that their fixed-term employment 
            contracts would be renewed (Mr Schlemer, the applicants’  third witness, 
            refuted this claim);
    d)  That student enrolment numbers improved significantly;
    e)  That the college failed to follow a fair and transparent process in deciding 
            which contract lecturers would be re-employed; and
    f)  That renewals occurred automatically, without interviews, and that she 
            expected her contract to be renewed for the 2026 academic year, 
            consistent with established practice.

[44] It was also important to note that the applicants’ third witness, Mr. Schlemer, the Deputy Principal of Corporate Services, clarified that the notices sent to applicants were reminders of contract expirations, not dismissals. He explained the distinction between permanent government-funded(Persal) posts and college-funded contingency positions, emphasizing that contract lecturers are hired temporarily to address operational needs, such as maternity leave or enrolment fluctuations, rather than to fill permanent, substantive posts. This testimony aligns with that of the employer’s sole witness, Dr. Mapaseka Muthumunu, who stated that the employees were not dismissed and that there was no justification for additional lectures and/or for calling the applicant in the 2026 academic year, as the student enrolment numbers did not justify the employment of additional lecturers.

[45] I now address the circumstances underlying the applicants’ claim that raised their expectations to determine whether those expectations were reasonable. For the sake of brevity, I deem it unnecessary to repeat those circumstances verbatim, as they are already stated above. I should state that I have considered them. I find that the employer did not conduct itself in any manner during the currency of the fixed-term employment contracts that could objectively be said to have caused the employee’s expectation that the applicants’ fixed-term employment contracts would be renewed. Having regard to the totality of the evidence before me, I find that the applicants failed to provide any persuasive evidence supporting a reasonable expectation of renewal of their expired fixed-term employment. The applicants’ case for renewal of the contract simply lacks merit because the employer refuted the applicants’ view that their contracts would be renewed with cogent evidence, and the applicants failed to rebut that evidence.

[46] As set out in the dicta in NUM obo Mpaki v CCMA and others, I find that, having regard to all the surrounding circumstances, the applicants failed to demonstrate that their expectations were reasonable. Accordingly, it is my finding that the applicants failed to discharge the onus of proof on a balance of probabilities that they were dismissed as envisaged by section 186(1)(b)(i).

[47] Following the legal principle set out in the above-cited cases, Pik-it-Up Johannesburg (Pty) Ltd v SALGBC and Others and SA Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd and Another, I find that there were no dismissals and, as a result, the ELRC has no jurisdiction to entertain the dispute under section 191 of the LRA.

AWARD

[48] For the reasons set out above, I find that the applicants were not dismissed as contemplated in section 186(1)(b)(i) of the LRA and that the ELRC lacks jurisdiction to entertain the dispute under section 191 of the LRA.

[49] Accordingly, no relief is granted.