---
title: "20 October 2026 – ELRC403-26/27GP"
description: "Case Number: ELRC403-26/27GP Panellist: Joseph Mphaphuli Date of Award: 20 October 2026 In the Arbitration between: Nehawu obo Shongwe (Union/Applicant) And Department of Higher Education & Training South West Gauteng TVET College (Respondent) 1. Details of hearing and representation The…"
url: "https://elrc.org.za/docs/20-october-2026-elrc403-26-27gp/"
updated: "2026-10-22"
category: AWARDS
---

# 20 October 2026 – ELRC403-26/27GP

Case Number: ELRC403-26/27GP
Panellist: Joseph Mphaphuli
Date of Award: 20 October 2026

In the Arbitration between:

Nehawu obo Shongwe
(Union/Applicant)

And

Department of Higher Education & Training
South West Gauteng TVET College
(Respondent)

1. Details of hearing and representation
   The award follows an arbitration hearing conducted virtually on the 21st of September 2026. The hearing was conducted in terms of Section 191 of the Labour Relations Act 66/1995. Mr Themba Mntameka of Nehawu, appeared for the Applicant. Mr Shawn Carney, employee in the service of the Respondent, represented the Respondent. The proceedings were digitally recorded. The final closing arguments from the Respondent were filed on 07 October 2026 out of the agreed date due to the representative’s indisposition. The Applicant party filed its closing arguments on the agreed date, being 28 September 2026.

The closing arguments were taken into account in arriving at the award.

1. Issue in dispute
   2.1 I had to determine whether termination of the Applicant’s employment contract amounted to a dismissal or not and make an appropriate award.
2. Background to the dispute
   3.1 The Applicant commenced employment on the 24th of August 2023. The Applicant served on successive fixed term employment contracts until the 30th of June 2026. The last contract was for the period of February 2026 to the 30th of June 2026. The Applicant was remunerated at R30 504.25 monthly. The Applicant desired reinstatement with arrear salary in the event of a favourable award.
3. Survey of evidence and argument
   Applicant's Case
   4.1 The Applicant took oath and gave evidence. She was employed as a PL1 Lecturer. She taught Tourism Nated Programme from N4 to N6. She served on the program till the end of the year 2025. She taught in Tourism NCV Programme from February 2026 to end of June 2026.

4.2 The Nated program was a semester program starting from January of each year to the end of June of the same year. The NCV programme was a year program from January of one year to November/December of the same year. She signed multiple fixed term contracts from August 2023 to the 30th of June 2026. She was serving on a yearly NCV program at the time of termination of her employment.
4.3 The Respondent invited lecturers to advise them of the termination of their contracts midyear 2025 only to be re-enrolled in February 2026. The same was communicated to her by the senior lecturer. She expected her contract to run to the end of the year 2026. The reason being that she was lecturing in a program that ran for a year. The fixed term contract was on a year-to-year basis. She occupied a position that was permanent in nature and so was the nature of her job.

4.4 According to the Respondent the course had been phased out. The reason for the termination of her employment contract was arbitrary and inconsistent with her employment contract. Her employment was for the NCV program whereas the termination letter referred to the Nated program. The Applicant was willing to work to the end of the agreed period namely, end of November/December 2026.She carried knowledge that someone else was substituted to her position after her contract was terminated.

4.5 She was one of the seven lecturers whose contracts were terminated. The other six were however, reinstated in July on a month-to-month basis. She was not given any reason why she was singled out for contract termination. She had expected that the Respondent would at least renew her contract on a month-to-month basis as it was the case in the past. She felt that her services were permanent in nature and that there was no sound factual or legal basis for the contract termination

4.6 Her post was funded and substantive in that she took over from a retired lecturer, further that she received payment every month without failure. To the best of her knowledge there were sufficient student numbers on the program.

4.7 The Respondent did not tender evidence in its case.

1. Analysis of evidence and argument
   5.1 There was no argument that the Applicant's employment was subject to a fixed term employment contract. It was common cause that the Applicant had previously served on a multiplicity of fixed term employment contracts extended over some years. The Applicant's case was in essence that there were no objectively determinable sound factual or legal grounds for the termination of her employment contract. The Applicant argued that she had a reasonable expectation for the renewal of her fixed term employment or even absorption into the institution on an indefinite basis.

5.2 The Applicant argued that her occupation was permanent in nature and that the student population in her NCV program favoured continued employment beyond the contract end date. Finally, the Applicant argued that the Respondent substituted her position with another lecturer following her contract termination and that this was further evidence that the position was ongoing.

5.3 The Respondent’s primary contention and argument was that the program on which the Applicant served was phased out, that the Respondent duly served the Applicant notice thereof, that the underlying reason for contract termination was that the Applicant’s position had become unsustainable owing to the decline in the student population in the affected program. The sum total of the Respondent’s case and argument was that the lecturers’ services were informed by the availability of students to be lectured failing which a lecturer would be surplus to the lecturing requirements of the institution, the Applicant’s case was a case in point, so argued the Respondent

5.4 The Applicants case was founded on the provisions of Section 186(1)(b). Section 186(1)(b) makes the following provision: "an employee employed in terms of a fixed term contract of employment reasonably expected the employer:

i. To renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.
ii. To retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee

5.5 It is evident from these provision that termination of a fixed term contract in circumstances contemplated in the Act amounts to a dismissal. The contested dismissal contemplated under Section 186(1)(b) places the onus to prove the existence of a dismissal on the party alleging that there was a dismissal unlike in the case where the existence of a dismissal is not in dispute in which event the party having effected the dismissal bears the onus to prove the fairness thereof. Section 192(2) of the Act is reference hereto. Proof is on a balance of probabilities.
5.6 Proof on a balance of probabilities simply put, implies that the most probable version of the two mutually destructive versions will be weighed against each other and the version that tips the scale wins the case. The Applicant was the only witness in the Applicant’s case. The Respondent did not call a witness and neither did the Respondent submit or present any documentary material to support its case.

5.7 The abridged version of the Applicant’s testimony was that she was engaged on a one-year fixed term contract as a PL1 lecturer on a yearly NC(V) program, the contract was for the period from the month of February 2026 to November/December 2026. The Respondent terminated her contract on the 30th of June 2026, six months prior to the scheduled contractual expiration date. The Applicant’s position was substituted following her contract termination in the NC(V) program.

5.8 The Applicant’s contract termination notice stated the reason for termination was the phasing out of the NATED program, a six-month duration program and not the NC(V) program she was employed for. The Applicant firmly and profoundly argued that there was sufficient enrolment in the NC(V) program for which reason she contended that her employment termination had no support in law or fact.

5.9 The letter serving as notice of the Applicant’s notice of termination of employment herein below attached is self-explanatory in as far as the reason for termination of employment is concerned.

“Ms T Shongwe
Lecturer-on-Contract (PL1)
Technisa Campus
Dear Ms Shongwe
REMINDER OF THE NON-RENEWAL OF THE CURRENT MONTH-TO-MONTH CONTRACT ARRANGEMENT AFTER 30 JUNE 2026 DUE TO THE PHASE-OUT OF REPORT 191/NATED N4 PROGRAMMES
This letter serves as a reminder that the College had resolved to offer the Report 191/NATED N4 programmes for the final time during the first semester of 2026. Consequently, you were appointed on a month-to-month contract basis as a PL1 Lecturer for the following periods:
16 February 2026 – 28 February 2026
09 March 2026 – 31 March 2026
1 April 2026 – 30 April 2026
1 May 2026 – 31 May 2026
1 June 2026 – 30 June 2026
Please be informed that, in line with the College's approved phase-out plan, all Report 191/NATED N4 programmes will officially be phased out by 30 June 2026. As a result, no further new or full-time offerings in these programmes will continue beyond this date.
Accordingly, your current month-to-month contract arrangement will terminate on 30 June 2026 and will therefore not be renewed thereafter.
The College Management wishes to express its appreciation for the services you have rendered during the first semester of 2026. We thank you for your contribution to the College and wish you success in your future endeavours.
Yours sincerely,
(Signature)
MJ Monyamane
Principal ‘’

5.10 The Applicant. alleged that she was an NC(V) lecturer on a yearly teaching program. It was further the Applicant’s case that unlike the NATED / Report 191, a six-month semester course, the NATED / Report 191 did not apply to her. The Applicant did not, however, provide any evidence in the form of a written contract to that effect.

5.11 The Respondent dismissed the Applicant’s averment that other lecturers whose fixed term employment contracts were terminated on the 30th of June 2026 were renewed. The Respondent reasoned that this evidence was fictitious, not based on facts and unreliable in the absence of supporting documentary evidence.

5.12 It was further the Respondent’s case that the work allocation timetable relied on by the Applicant as evidence that her services were required beyond the 30th of June 2026 was not authentic in that it bore no stamp of the Respondent and was not on the Respondent’s official documentation.
5.13 The Applicant Party firmly contended that there were sufficient numbers of NC(V) students and the teaching requirements arising from those enrolled students. The Applicant party lamented the fact that the Respondent allocated work previously executed by the Applicant to permanent lecturers.
5.14 The Applicant Party decried the recall of other six lecturers whose contracts were terminated in circumstances similar to those of the Applicant. The Applicant Party argued that the Respondent had no plausible explanation as to why only the Applicant was singled out for contract non-renewal.
5.15 The Applicant Party finally factored the ELRC Collective Agreement No 1 / 2013 where it provides for the permanent appointment of temporary and contract lecturers who have been employed continuously for twelve months or longer, a matter that is better suited for argument under the interpretation and application of Collective Agreement and not Section 186.
5.16 The hallmarks of a fixed term employment contract are the starting date, finishing date or a link to a project, the occurrence of which would spell an end to a fixed term employment contract. In this event termination of employment does not amount to a dismissal. Termination is in the event by agreement or effluxion of time. Termination of a fixed term employment contract simply means the end of an employment relationship, how the relationship ends determines whether it is a neutral expiry or a dismissal.
5.17 Parties to an employment relationship have at their disposal various means of ending the employment relationship. An employee may end the relationship by way of resignation or without notice or by absconding. An employer on the other hand may unilaterally terminate the services of an employee by dismissing an employee for reasons related to an employee's conduct, capacity or operational requirements or even for a reason unknown to the employee. Other ways whereby an employment relationship can be brought to an end is by parties in the relationship agreeing to terminate the relationship. This may take the form of mutual separation or terminating an expired fixed term employment contract.
5.18 In the last-mentioned instances, the termination of an employment relationship does not give rise to a dismissal unless an employee claims that he or she was coerced, tricked or that mutual separation was under false pretext at the instance of an employer and accordingly file an unfair dismissal dispute under section 191 of the LRA.
5.19 In the second place an employee who was engaged under a fixed term employment contract, may at the agreed date of termination of the said contract claim that he or she was dismissed. The argument in this case would be that an employee had a reasonable expectation of continued employment as contemplated under section 186 (1)(b) of the Act.
5.20 The matter under investigation has a direct bearing on the provisions Section 186(1)(b) of the Act. The Applicant’s dispute referral application states that the dispute arises from the unfair termination of the Applicant’s employment by the Respondent on the 30th of June 2026. This against the background that the Applicant had been employed continuously on contract for periods exceeding twelve months, the Applicant had a reasonable expectation for continued employment.
5.21 The Applicant sought retrospective reinstatement on an indefinite basis or renewal of the fixed term contract on the same or similar terms with full back pay and benefits from the 01st of July 2026. Alternatively, sought maximum compensation permissible under Section 194 of the LRA. The dispute referral application continued to state that the dismissal is substantively unfair because the Applicant had a clear, reasonable expectation that her fixed term contract would be renewed or extended, given her service exceeding twelve months.
5.22 The Labour Relations Act places the onus of proof on the employee claiming the existence of a dismissal, to prove that indeed there was a dismissal. Section 192(1) of the Act makes this point. Proof is like in the case of actual dismissal, that is where an employer is the author of the dismissal as in cases of misconduct, incapacity, operational requirement dismissal and dismissals for reasons unknown to an employee, on a balance of probability.
5.23 The enquiry is twofold, firstly, the enquiry must determine whether there was a dismissal or not, if so, the enquiry must proceed to enquire about whether the dismissal was fair or not. The enquiry will only proceed to determine the fairness or otherwise after the conclusion in the first enquiry that there was a dismissal.
5.24 To achieve or to establish the existence of a dismissal an employee must prove in a subjective sense that he or she had a reasonable expectation for continued employment as contemplated by Section 186(1)(b) and that the expectation objectively viewed, must be reasonable. The Courts have developed a multi-factor test for determining the existence of a reasonable expectation. The Labour Court decision in the matter of NUM obo Mpaki and others JR1983/2014ZALC JHB (LAC) 354 makes the point that there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The Court identified a number of factors, which 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. Proof of the said circumstances remain the predominant consideration in making a determination The list is not necessarily exhaustive.
5.25 Much as the Applicant. argued in favour of a fixed term employment contract for NV(C) program running from February – November/December 2026, the Applicant provided no documentary evidence to substantiate the claim. The Applicant. provided no evidence to negate the Respondent’s argument against the existence of such a contract. Much as the Applicant and the Applicant Party persistently and steadfastly argued that the nature of the Applicant’s job was permanent, the Applicant Party could not displace the Respondents case that the dwindling numbers of students on the affected program was the reason for the termination of the Applicant’s employment contract.
5.26 It was not disputed that the fluctuation of the student population/enrolment underlines the recruitment of lecturers on a fixed term basis. Where the numbers did not justify the retention of a fixed term contract lecturer, the lecturer become surplus to the college requirements. In the event, termination of employment becomes inevitable.
5.27 It is a well-established legal principle in the South African law of litigation that a party is not expected or even required to prove a negative. Thus, in the current case, being that the student population did not justify the retention of the Applicant the party which does not bear the onus of proof may be required or even legally have a duty to rebut the case of the party bearing the onus, if the party bearing the onus has made a prima facie case for its claim.
5.28 The Applicant Party's case about the retention of other lecturers employed in circumstances similar to those of the Applicant elsewhere in the service of the Respondent and whose contracts were renewed, lacked substance in the absence of evidence to prove the alleged similarities. It becomes evident when analysing the Applicant Party's case that the case was built on the say so of the Applicant, which say so was not substantiated by evidence.
5.29 Proof in law implies an established fact or state of affairs drawn from raw evidence to show that a fact is true or an event occurred. Oral testimony supported by documentary evidence where this is appropriate serve to establish proof. Regretfully, there was no other evidentiary material to support the Applicant’s case above the Applicant’s oral testimony. The factoring of the Collective Agreement into the equation did not do much to advance the Applicant’s case read against the fact that the dispute forming the subject of the enquiry was solely founded on the provisions of section 186(1)(b) of the Act.
5.30 The Labour Court decision in the matter of in Sindane v Prestige Cleaning Services (2010) 31 ILJ 733 (LC), the Court held that a fixed-term contract terminates by operation of law at the end of its term. Such termination does not constitute a “dismissal”.
5.31 The argument or testimony about projected lecture schedules was rejected by the Respondent for reasons related to authenticity. There was no evidence emanating from the Applicant to prove that the document was legitimate. It is against this background that I arrive at the conclusion that the Applicant’s case did not pass muster of the standard set in Section 192(1) of the Act. The Applicant as the bearer of the onus of proof had failed to discharge proof. In the event, the balance of probability favoured the Respondent’s case.

1. Award
   6.1 There was no dismissal, alternatively the Applicant failed to prove that there was dismissal.
   6.2 I dismiss the application for the alleged unfair dismissal.

Signature:
Commissioner: Joseph Mphaphuli