IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY
Case Number: ELRC727-24/25GP
In the matter between:
NEHAWU OBO SITHATHU PHILILE APPLICANT
And
DEPARTMENT OF HIGHER EDUCATION & TRAINING RESPONDENT
(CENTRAL JOHANNESBURG TVET COLLEGE )
ARBITRATION AWARD
ARBITRATOR: ADVOCATE MORAKA ABEL MAKGAA
Heard: 11 November 2025 and 05 December 2025.
Closing arguments: 12 December 2025
Date of Arbitration Award: 19 January 2026
Nature of dispute: Interpretation and/or application of a Collective Agreement.
DETAILS OF THE HEARING AND REPRESENTATION
1 The matter was heard virtually on 11 November 2025 and concluded on 05 December 2025. The Applicant was always present and represented by Mr David Lephoto, an office bearer of the National Education, Health and Allied Workers’ Union (“NEHAWU”).
2 The Respondent was represented by Mr Johnson Thokozani Nkambule employed by the Respondent as its Assistant Director: Labour Relations. Mr Nkambule was accompanied by two Interns from Labour Relations, viz Ms Asekho Gcaba and Ms Noxolo Buthelezi.
3 The proceedings were conducted in English, and were recorded both manually and digitally.
ISSUE TO BE DECIDED
4 I am required to determine whether the Applicant had failed to comply with the provisions of clause 2.2 of Annexure A to the ELRC Collective Agreement 1 of 2013. If yes, I am required to determine the appropriate remedy.
FACTUAL BACKGROUND
5 On 25 August 2025 the Applicant lodged a grievance alleging that the Respondent has, when renewing the Applicant’s fixed-term contracts during 2021, 2023 and 2025 failed to comply with the provisions of clause 2.2 of the ELRC Collective Agreement 1 of 2013.
6 Dissatisfied by non-resolution of the grievance, NEHAWU obo the Applicant referred a dispute of interpretation and/or application of a collective agreement to the ELRC for conciliation. The matter could not be resolved at the conciliation stage. It was referred to arbitration, scheduled to be heard on 11 November 2025 and served before me.
7 The Applicant submitted an evidence bundle which was marked as as “PS1”, made up of 71 pages. The Respondent’s bundle is marked as “CJTC1”, made up of 29 pages. I also assisted the parties to draw up a pre-arbitration minute. A copy of the signed pre-arbitration minute is attached hereto as Annexure “A & R1”, made up of 4 pages.
COMMON CAUSE FACTS
8 The Applicant was, since March 2020, appointed by the Respondent on several fixed-term contracts of employment, which were renewed on several occasions. The Applicant contends that, according to clause 2.2 of Annexure A to Collective Agreement 1 of 2013, once the Respondent has decided to renew a fixed-term contract of employment, the commencement date must be the first day of the month following expiry of the previous fixed-term contract.
9 The Applicant’s complaint is based on the fact that about three of the fixed-term contracts she concluded with the Respondent were not renewed timeously, something which resulted in the exclusion of certain periods from the approvals granted by the Respondent.
10 It was further agreed that there were no disputes of facts between the parties. The following was agreed to be the issue in dispute which must be decided by the Commissioner:
Whether the periods during which the Applicant was not in the employ of the Respondent should be interpreted as a break in service for purposes of clause 2.2 of Annexure A to the Collective Agreement or for purposes of section 84 of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) read together with the DPSA Circular dated 05 August 2014.
11 The parties were given until 12 December 2025 to submit their written closing arguments. I wish to confirm receipt of the parties’ written submissions, which have been taken into account in this matter.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT12 Philile Sithathu, who is the Applicant in this matter, testified under oath and her evidence can be summarised as follows. She has been appointed by the Respondent on renewal fixed-term contracts of employment as a post level 1 lecturer since 09 March 2020.
13 She further testified that her contract of employment which expired on 31 December 2020 was renewed from 22 February 2021 instead of being renewed from 01 January 2021. There was a break in service for the period 01 January 2021 to 21 February 2021 which is attributable to the Respondent’s conduct.
14 She further testified that one of her contracts of employment ended on 31 December 2023. The subsequent contract commenced on 29 January 2024 instead of 01 January 2024. The break in service in this regard was for the period 01 January 2024 to 28 January 2024.
15 The other contract of employment was renewed with effect from 28 July 2025 as opposed to being renewed with effect from 01 July 2025. The break in service she is aggrieved about relates to the period 01 July 2025 to 27 July 2025.
16 Under cross examination, she testified that section 67 (3) of the Labour Relations Act was irrelevant to her dispute because of the fact that it was the employer which was responsible for delaying approval of renewal of the contracts of employment she is aggrieved about.
17 She disagreed with the proposition that clause 2.2 was not about remuneration. She further testified that the breaks in service she is aggrieved about was caused by the employer.
18 David Leonard Lephoto’s testimony, which was also given under oath, can be summarised as follows. He is a permanently appointed lecturer at Central Johannesburg TVET College. In 2013 he was elected as the Shop steward of NEHAWU at the same TVET College.
19 He further testified that clause 2.2 of Annexure A to Collective Agreement 1 of 2013 means that where the fixed-term contract is renewed there will be no break in service. He also testified that the employer cannot determine the commencement date of a fixed-term contract unilaterally.
20 He corroborated the evidence of Ms Sithathu in material respects, especially insofar as the interpretation of clause 2.2 is concerned.
21 Under cross examination, he disagreed with the proposition that the service of Ms Sithathu had not been broken for the purposes of section 84(1) of the Basic Conditions of Employment Act. He also insisted that there was a break of service in respect of Ms Sithathu for purposes of clause 2.2 of Annexure A to Collective Agreement 1 of 2013.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
22 Sabelo Wiseman Plaatjie testified under oath, and his evidence can be summarised as follows. He is employed by the Respondent as the acting Assistant Director: HRM and Development, the position he had occupied since November 2022. He is currently appointed as the acting Deputy Principal: Corporate Services
23 He further testified that according to section 84(1) of the BCEA, where an employee whose employment had been terminated but such an employee is re-employed by the same employer within a period of 12 months, such break in service would be regarded as continuous service.
24 He further testified that during 2014 the Department of Public Service and Administration issued a Circular explaining how section 84(1) of the BCEA should be applied in the public service. He also testified that paragraphs 4.12.4 and 4.13.1 of the Leave Policy of the Department of Higher Education and Training are also meant to give effect to section 84(1) of the BCEA.
25 He further testified that the fact that the break of service between the various contracts of employment in respect of Ms Sithathu were for less than 12 months means that she had an unbroken service.
26 Under cross examination, he insisted that there were breaks in service occasioned by the delays in the granting of approvals for the renewal of some of the contracts of employment in respect of Ms Sithathu.
27 He disagreed with the proposition that section 84(1) of the BCEA is irrelevant to the case of Ms Sithathu.
ANALYSIS OF EVIDENCE AND ARGUMENT
28 Section 24(1) of the Labour Relations Act 66 of 1995 (“LRA”) provides as follows:
“Every collective agreement excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement contemplated in either section 142A or 158 (1) (c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration”.
29 In the instant case, the Applicant’s dispute has its foundation in the provisions of the ELRC Collective Agreement 1 of 2013 dealing with Generic Contract of Employment for post level 1 lecturers appointed in public Further Education and Training Colleges (“Collective Agreement 1 of 2013”).
30 Clause 7 of Collective Agreement 1 of 2013 provides as follows:
“DISPUTE RESOLUTION
7.1. Any dispute about the interpretation or application of this agreement shall be resolved in terms of the dispute resolution procedure of the Council”.
31 Clause 68 of the ELRC Constitution: Part C, Dispute Resolution Procedures (Basic Education and TVET), 25 July 2023, provides as follows:
“68. Interpretation and application of Collective Agreements
A party to a dispute about interpretation or application, or non-compliance with any Collective Agreement including the provisions of the BCEA may refer such dispute to conciliation and arbitration in terms of these procedures”.
32 Clause 4 of Collective Agreement 1 of 2013 states as follows:
“THE PARTIES TO COUNCIL THEREFORE AGREE AS FOLLOWS:
4.1. The generic contract of employment for lecturing staff in the public Further Education and Training Colleges, together with its annexure shall apply to all lecturers. A copy of the generic contract is attached to this agreement as Annexure A”.
33 Clause 2.2 of Annexure A to Collective Agreement 1 of 2013 provides as follows:
“2. COMMENCEMENT DATE
2.2. This appointment will be for a fixed term contract that will officially commence from____________ to __. In instances where the fixed term contract is renewed; there will be no break in service”.
34 Before answering the question whether the phrase ‘there will be no break in service’, should be interpreted as a deeming provision which carries with it an automatic renewal of fixed-term contract of employment from the first day of the month following the last day of the preceding fixed-term contract of employment, it is important to make reference to sections 213 and 67(3) of the LRA read together with section 1 of BCEA, which provide as follows:
“Remuneration means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and “remunerate” has a corresponding meaning.
…an employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or a protected lock-out”.
35 In North West Provincial Legislature and Another v National Education, Health and Allied Workers Union obo 158 Members , the Labour Appeal Court said the following about remuneration:
“Remuneration is paid in terms of a contract of employment as a quid pro quo for services rendered. Where services are not rendered by an employee, as a general rule, remuneration is not payable…”
36 The correct legal position, as I understand it, is that an employee is under a legal obligation to work or render services in order for him or her to be entitled to remuneration whereas the employer, on the other hand, is under an obligation to pay such an employee for the services rendered.
37 Assuming, for a moment, that there was something wrong with the Respondent’s conduct with regard to the periods which were excluded when the approvals were granted for the renewal of the fixed-term contracts in question, the critical question is where should the Applicant turn to if aggrieved by the Respondent’s conduct.
38 It is my considered view that the Applicant’s remedy lies in section 186(1) of the LRA, which, in the relevant parts, provides as follows:
“186. Meaning of dismissal and unfair labour practice
(1)(b) ‘Dismissal’ means 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 not renew it”.
39 The cumulative effect of the evidence in support of the Respondent’s case was to the effect that the phrase ‘there will be no break in service’ should be read through the lens of the provisions of section 84 of the BCEA, which provide as follows
“Duration of employment
(1) For the purposes of determining the length of an employee’s employment with an employer for any provision of this Act, previous employment with the same employer must be taken into account if the break between the periods of employment is less than one year.
(2) Any payment made or any leave granted in terms of this Act to an employee contemplated in subsection (1) during a previous period of employment must be taken into account in determining the employee’s entitlement to leave or to a payment in terms of this Act”.
40 When the phrase ‘there will be no break in service’ is read with the understanding that the relief sought by the Applicant (which is the remuneration while he was not in the employ of the Respondent) involves payment as a quid pro quo for services rendered, the Respondent’s version that the answers can be found in section 84(1) of the BCEA cannot be faulted.
41 What is abundantly clear, is that the significance of the phrase ‘there will be no break in service’ is intended to ensure that an employee’s working experience is not easily forfeited. It appears to me that the duration of employment envisaged by the provisions of section 84 of the BCEA and the phrase ‘there will be no break in service’ in clause 2.2 are intended to be taken into account when determining the employee’s entitlement to leave or to payments such as severance pay.
42 It is my finding that the provisions of clause 2.2 of Annexure A to Collective Agreement 1 of 2013 do not prescribe the date on which a specific fixed-term contract of employment should commence and end.
43 It is my considered view that the duration of employment of employees falls within the exclusive purview of the employer. It is also my finding that clause 2.2 cannot be relied on for a claim of payment of salaries in circumstances where services had not been rendered by the aggrieved employee.
44 In the premises, it is my finding that the Applicant has failed to make out a case proving or suggesting that the Respondent had acted in contravention of any of the provisions of Collective Agreement 1 of 2013.
AWARD45 The claim of the Applicant, SITHATHU PHILILE, pertaining to the alleged non-compliance with clause 2.2 of Annexure A or any provision of Collective Agreement 1 of 2013 is hereby dismissed.
DATED AND SIGNED AT POLOKWANE ON THIS 19TH DAY OF JANUARY
2026.
MORAKA ABEL MAKGAA
(ELRC PANELIST)