20 August 2025 – ELRC1397-24/25WC

Case Number: ELRC1397-24/25WC
Panelist: Thobela Obey Mqamelo
Date of Award: 20 August 2025

In the Arbitration between

Babalwa Pupuma
(Applicant / Union)

And

Western Cape Department of Education
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This unfair dismissal dispute was arbitrated through online platform Microsoft Teams on 02 June 2025, and on 31 July 2025. The Education Labour Relations Council hosted the proceedings.
The applicant, Babalwa Pupuma (herewith referred to as ‘’applicant’’) was present on all the days and was represented by Tesrell Fortuin (Mr Marema) a Full Time Shop Steward from SADTU (‘’Union’’)
The respondent, Western Cape Department of Education (herewith referred to as ‘’respondent’’) was present and represented by Liezel Diedricks (Ms Diedricks) a Labour Relations Officer at the respondent.
Parties filed their signed Pre-Arbitration minutes (their common cause and matters in dispute are recorded in this arbitration award).
Parties submitted their opening statements orally.
Both parties submitted their bundle of documents, and were marked (Employee bundle – consisting 3 pages, and the Employer’s bundle – consisting of 8 pages and an Addendum with 3 pages).
Ms Babalwa Pupuma, Nomakhaya Mbeki, Zola Xhalisile, Harry Arthur testified during the proceedings.
Evidence was tendered under Oath.
The proceedings are manually and digitally recorded
Both parties agreed to file their closing arguments in writing by no later than 07 August 2025. The respondent filed its closing arguments within the time limits on 07 August 2025, and the applicant’s closing arguments were file outside the time limits on 09 August 2025. I only perused the respondent’s closing arguments.

COMMON CAUSE FACTORS

In terms of the Pre-Arbitration minutes, the following are common cause matters.
• Ms B.Pupuma was a post level 1 educator in a contractual position at Ntwasahlobo Primary School.
• Her contract came to end on 31 December 2024.
• Ms Pupuma earned a salary p/a of R333 624 including 37%
• In 2023 she was an SGB educator at the school teaching Grade 7.
• In May 2023 an educator, Mrs Mafuye, resigned and she was appointed in that post. – do not agree.
• The condition of her appointment was that she stays in grade 7 to assist departmental head – do not agree
• October 2023, she applied for conversion via the concession link (Circular 0028/2023) – not applicable.
• Her contract was renewed from January 2024-31 March 2024.
• She completed an application for conversion during that time.
• Her contract was renewed from 01 April 2024 to December 2024.
• Principal informed her on 28 January 2025 that there are there 3 contracts, and one must be terminated. – do not agree
• On 30 January 2025 principal informed her that her contract will be terminated. – do not agree

MATTERS IN DISPUTES

In terms of the Pre-Arbitration minutes, the following are matters in dispute.
• Ms Pupuma was in a vacant substantive post from May 2023. – not applicable.
• Ms Pupuma applied via the concession link in 2023 and therefore she should have been converted. (Principal apply for me and respond that he the one receive it)
• Ms Pupuma was told as soon as Mr Koni is promoted and appointed, she will be appointed in that post as from 1 April 2025

ISSUE TO BE DECIDED

I must determine whether or not the applicant was dismissed by the respondent, and if so whether the dismissal is fair.
The applicant is challenging both the procedural and substantive fairness of the dismissal.
The applicant seeks retrospective reinstatement.

SUMMARY OF EVIDENCE AND ARGUMENT

This is a brief summary and evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand.

APPLICANTS TESTIMONY
APPLICANT’S 1st WITNESS
BABALWA PUPUMA (MS PUPUMA)

Ms Pupuma testified that she has been previously employed by the respondent on fixed terms contract which expired on 31 December 2024. She received notification from the respondent when that fixed term contract was to expire. The crux of this matter pertains to the period 01 January until 31 January 2025.
She further testified that on 13 January 2025 she was contacted by the Ms Nomakhaya Mbeki (the Principal of Ntwasahlobo Primary School) who informed her that there is a position of an Educator within the school, and the intention is to have her on fixed term contract until 31 March 2025, and that she (Ms Mbeki) has discussed this with the Circuit Manager about the nomination of Ms Pupuma and that the Circuit Manager has agreed to the Principal signing her (Ms Pupuma) fixed term contract .
She was further informed by The Principal, Ms Mbeki that there is a need for an Educator at the schools, and that she was filing the position of Mr Koni who was acting in the Position of an HOD post level 2.
It is Ms Pupuma’s testimony that before she commenced tendering her services, she signed the nomination form, and that even in her previous fixed term contracts she was signing the nomination. During January 2025 when she signed the nomination letter she expected to form as she was nominated for a three (3) months contract in the position of Mr Koni.
According to the applicant’s testimony she was appointed to this position on a fixed term basis as the Principal Ms Mbeki submitted a Teacher Nomination Form of the applicant to the Circuit Manager for the period 01 January 2025 until 31 March 2025.
She referred to the letter dated on page 3 of the applicant’s bundle which read as follows.
‘’Subject: Motivational Letter Appointment of Ms. Babalwa Pupuma’’
It is further the applicant’s testimony that on following up with the principal (Ms Mbeki) she was informed that she has submitted the motivation to the Circuit Manager and that the Circuit Manager will approve the appointment.
It is Ms Pupuma’s testimony that was dismissed by the respondent, on 31 January 2025 when the Principal and one of the HOD at school informed her contract will not be renewed for the year 2025, as the school already has excess of teachers in the school. The applicant’s testimony is that it is not true that the school has excess of teachers, and that her dismissal is unfair.

RESPONDENTS TESTIMONY
RESPONDENT’S 1st WITNESS
NOMAKHAYA MBEKI (MS MBEKI)

She testified that she is currently employed as a Principal at Ntwasahlobo Primary School in the Western Cape, and that before being appointed she has been an Acting Principal for the school.
It is her testimony that, Ms Pupuma was employed on a fixed term contract which expired on 31 December 2024.
In January 2025 she contacted Ms Pupuma telephonically and informed her that the school is in need of an Educator, and that she will submit and motivation for the nomination. She submitted the nomination in January 2025 to the Circuit Manager for approval, as she believed that when Mr Koni is appointed on 01 April 2025 it will open a position where the applicant can occupy, but so long before the position is not open the best way is to try with the approval of the Department and have her in fixed term contract from 01 January 2025 until 31 March 2025.
Ms Mbeki testified that as the Principal, she does not have the powers to appoint an Educator on behalf of the respondent, hence when she nominated Ms Pupuma, she sent the nomination for to the Circuit Manager for approval. It is her testimony that the nomination form is completed before the appointment of every fixed term contract Educator by the respondent, and that she had informed Ms Pupuma that she is not sure whether the motivation will be approved by the respondent.
It is her testimony that the applicant was not dismissed by the respondent, as there was never an employment relation between the applicant, and the respondent after the 31st of December 2025.
She was informed by the Circuit Manager that the Shool (Ntwasahlobo) Primary School has exceeded the staff compliment of 22 Teacher for the School by already two (2) Educators, hence the school will not be allowed to have an extra Educator (refreeing to Ms Pupuma)
She and the HOD from the School went to inform According to Mr Mbeki, she was informed by the Circuit Manager that her school is above staff compliment hence the contract of Ms Pupuma will not be extended. She then had to relay the message to Ms Pupuma.

RESPONENT’S 2nd WITNESS
ZOLA XHALISILE (MR XHALISILE)

The 2nd respondent witness of the respondent Mr Xhalisile an HOD at the School and a Member of the School Management Team corroborated the testimony of the Ms Mbeki in that the nomination form is completed by the Principal as a requirement before every Teacher’s appointment is confirmed by the Circuit Manager of the respondent.
It is his testimony that the applicant was not dismissed and that her employment contract expired on 31 December 2024. The nomination of Ms Pupuma was an attempt to have Ms Pupuma’s employment contract extended as they did not want to lose her as the school.

RESPONDENT’S 3rd WITNESS
HARRY ARTHUR (MR ARTHUR)

Mr Arthur who works for the respondent at the staff establishment testified with regards to matters of staff compliment. He confirmed that the required staff compliment at Ntwasahlobo Primary School is 22 Educators (Temporary and Permanent), and that was the reason the applicant’s contract of employment was not renewed in 31 January 2025.

ANALYSIS OF EVIDENCE AND ARGUMENT

Section 192 of the LRA states:
(1) ‘’In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal;
(2) If the existence of the dismissal is established, the employer must prove the dismissal is fair’’.
The existence of the dismissal is disputed by the respondent therefore the applicant bears the onus of prove the existence of the dismissal.
The applicant is challenging the substantive fairness of the dismissal.
The cross-examination of the applicant proved that the applicant is ware of the purpose of the nomination letter that it must be completed by the principal before the commencement of every Educator on a fixed term contract, and that this nomination letter must go to the Circuit Manager.
During cross-examination the respondent’s version put across to the applicant was that for the period of 2023 until 2024 the applicant was replacing Educators who were acting the positions of Heads of Departments (HOD).
The applicant’s contention is that the Principal appointed on behalf of the respondent for a fixed term contract, and that there was reason for her appointment. This version cannot be probable because the applicant in her testimony conformed that she made follow up with the Principal on the progress of the nomination letter to the Circuit Manager, hoping that the Circuit Manager will approve it (as she was informed by the Principal that the Circuit Manager will approved it. This alone proves that the applicant was aware that the Principal is not vested with the powers appoint.
According to the applicant’s testimony she always submitted the Teacher Nomination Form before commencement of fixed term appointment. It is common cause that the applicant worked for the period 13 January 2025 until 31 January 2025. On 31 January 2025 she was invited to the principal’s office and was informed by the principal that her employment terminated on the same day 31 January 2024, due to that there are no post at the school and that the staff compliment at Ntwasahlobo Primary School full.
During the cross-examination Ms Nomakhaya Mbeki emphasized that she does not have powers to appoint, but can write a motivation on nomination on behalf of the school. It is proved through evidence that it is exactly what she did in January with the applicant, she wrote a nomination letter nominating the applicant for a fixed term contract in the position of Mr Koni who was acting as an HOD. Her cross examination also revealed that the reason behind the applicant not being appointed by the respondent was because the staff compliment at the school was over the requirement.
Although the applicant in her testimony does not believe that the staff compliment was in full at that time, as according her knowledge Mr Koni who was a P1 Educator was acting in the position of P2, which made his (Mr Koni’s) position to be vacant which is the position referred to in the motivation letter. Mr Xhalisile in his cross-examination clarified that, the staff compliment required 22 teachers and that when the teachers were acting they were already 23 and one teacher was deployed to another school to make twenty two (22) educators ; within that moment it is common cause through evidence one of the Acting HOD’s withing the school did not qualify which made the respondent to employ an HOD from outside to the school making it again the number to be 23, now the presence of Ms Pupuma on contract in 2025 would make 24 educators, that was the reason given by the Circuit Manager for not approving the nomination of Ms Pupuma. Hence there was no offer of employment from the respondent to the applicant.
The importance of staff compliment was emphasized by the testimony of Mr Harry Arthur an employee at the respondent Staff Establishment Division.
It is common cause that after Ms Mbeki and the HOD had relayed the message to the applicant in their meeting on 31 January 2025, that her nomination for fixed term contract is not accepted by the Circuit Manager, she (Ms Mbeki) called a meeting with the School Governing Body, in the meeting with the SGB she discussed the need for Ms Pupuma at the school, and the SGB in it’s capacity offered to continue the employment relation with applicant but the applicant showed no interest.
It is common cause that the nomination of the applicant for P1 fixed term contract from 01 January 2025 until 31 March 2025 was done by Ms Mbeki in January 2025 because Mr Koni’s appointment from P1 to P2 HOD position within the School Ntwasahlobo Primary School was still acting and to be confirmed on 01 April 2025, and that the school did not lose any of the HOD’s during the period of declaring of excess staff.
It was not disputed by the applicant that although Mr Koni was appointed on 01 April 2025 from P1 to P2 position it was still within the school, and was making no influence in the staff compliments to decrease.
It is proved by evidence in front of me that the Principal does not have powers to employ but the Circuit Manager (with Powers vested in him/her by the Head of Department) on behalf of the respondent hence the nomination letter to the Circuit Manager.
I have assessed the document on page 3 of the applicant’s bundle, it is a nomination letter from the school to the respondent, Western Cape Department of Education, and not an offer of employment by the respondent.
The fact that the applicant was contacted and had rendered service from 13 January 2025 until 31st January 2025 was a School Principal acting on her capacity on behalf of the School Governing Body. This is further characterised, and proved by the testimony of Ms Mbeki that she (as the Principal) met with the School Governing Body after 31 January in an attempt to keep the applicant at school as according to the Principal, she believed she was still needed at the school.
In the matter ‘’ In Wyeth SA (Pty) Ltd v Manqele and others [2005] 26 ILJ 749 (LAC) it was held that the definition of Employee in section 213 of the LRA can be read to include a person or persons who has/ have concluded a contract of employment of which the commencement of employment is deferred to a future date’’.
It this matter of the applicant there was no offer of employment after 31 December 2024 by the respondent through any of its delegated representatives, it follows that there could not have been an acceptance of employment by Ms Pupuma.
I find that there was no employment relation that existed between the applicant, Ms Babalwa Pupuma, and the respondent, Western cape Department of Education from 01 January 2025.
The procedural claim also falls as a result of that.
I find the applicant, Ms Babalwa Pupuma was not dismissed by the respondent, Western Cape Department of Education and she is not entitled to the relief sought.