ARBITRATION

AWARD

Panellist/s: Seretse Masete
Case No.: ELRC 1010-24/25MP
Date of Award: 20/11/2025

In the ARBITRATION between:

Masephula Surprise

(Union / Applicant) And

Department of Higher Education : Mpumalanga

(Respondent)

Union/Applicant’s representative: N Mgidi, a colleague.
Union/Applicant’s address:
Telephone:
Cell:

Respondent’s representative: Sifiso Malinga

Respondent’s address:
Telephone:
Cell:

Particulars of the proceedings and representation

1. The matter was held on 21 May 2025, 11 and 12 August 2025 and 13 October 2025 at the respondent’s premises in Mbombela, Mpumalanga Province.
2. The Applicant, Surprise Masephula, was represented by Noziqhamo Mgidi, a colleague, while the respondent, Department of Higher Education was represented by Sifiso Malinga.
3. The proceedings were conducted in English and interpreted into IsiSwati by Thobeka Molefe, and digitally voice recorded.

Issues to be decided

4. To determine whether or not the termination of the applicant’s contract fair.
5. I must also determine as to whether or not process undertaken by the respondent to terminate the applicant’s contract was fair.

Background and Nature of the dispute

6. The applicant was employed as a lecturer on fixed term contract on 31 March 2021 to December 2022 at Ehlanzeni TVET college in Mpumalanga, earning R30,800-00 per month.
7. Her contract was renewed several times until it was terminated in December 2024.
8. After the termination of her contract in December 2024, she referred the dispute of unfair dismissal to the Council.
9. She believed that her dismissal was unfair and sought reinstatement coupled with compensation.
10. The respondent denied that the applicant was dismissed citing that her contract came to an end in December 2024.
11. The applicant testified and called three witnesses and submitted two bundles of documents marked A and A2 while the respondent called four witnesses and submitted one bundle of documents.

Survey of parties’ evidence

Applicant’s Evidence
The applicant, Surprise Masephula, testified under oath as follows:

12. She was employed as a lecturer on a fixed term contract offering Maths, digital electronics and electrical subjects at Ehlanzeni TVET College under NCV from 15 March 2021 to 31 August 2021. After 31 August 2022 she proceeded working without having received the extension letters. The extension letters the respondent claimed to have been given to her were fabricated to suit the respondent for the sake of defending the case. She had a degree in electrical engineering, a trade test certificate, coding and robotics. She specialised in electrical engineering. She competed for the post she was occupying with Ms Sibisi and she was picked as the successful candidate. Within two weeks of arriving at the college, her supervisor, TT Lubisi started looking at her in a different way. He later made some sexual advances to her, touching her on the parts she would not have liked to be touched. She did not like the move by her supervisor and she reported the matter to her superiors, in particular, Tshigodime, the Departmental Head (DH). Tshigodime did not do anything. Her relationship with TT Lubisi started souring and he started mistreating her. He would deprive her of the working tools as well as the PPEs. He (TT Lubisi) even tried to knock her with a car. TT Lubisi would lock the office and leave making her to be unable to access the office. The bad treatment continued and the campus manager knew about it. The campus manager instead of calling her and TT Lubisi, only called Tsigodime and they discussed the matter without involving her.
13. She was employed to teach electrical engineering and Mathematics in the NCV faculty. There was a time when she went on a maternity leave and on returning, she found that her subjects were allocated to Ms Sibisi. Ms Sibisi was a fiancée to Mr Mandlevu who was a DH at that time. On enquiring as to why her subjects were allocated to someone else, she was told that it was TT Lubisi who told the management to remove her from teaching those subjects. She could teach all subjects that Ms Sibisi could teach, but she had an advantage over Ms Sibisi in that she was trained in robotics and Ms Sibisi was not. Around November 2024, she enquired with Tshigodime about her fate because her contract was going to end on 31 December 2024. Tsigodime promised her that she should not worry and that she would continue working even after the 31st December 2024. She relaxed with a hope that her contract would be renewed. Surprisingly, on 18 November 2024, she received a termination letter and her contract of employment terminated on 31 December 2024.
14. She felt the move amounted to unfair dismissal because Tshigodime promised her that her contract would continue beyond December 2024. It was not only her contract which was terminated, there were other contractual lecturers whose contracts also were terminated in December 2024. Surprisingly, Ms Sibisi who was also employed on contractual basis, survived the termination. It was unfair because Ms Sibisi was given her (applicant) subjects to teach to shield her (Ms Sibisi) from being terminated. Ms Sibisi joined the college to replace Mr Maswanganyi who disappeared for sometimes. When Mr Maswanganyi returned, Ms Sibisi was retained. She believed taking her subjects and giving to Ms Sibisi was a preparation for Ms Sibisi not to be affected by the termination. She had more advantage than Ms Sibisi because she was employed to teach in the NCV and Ms Sibisi was employed to teach in the NATED. She also had a training in Robotics which Ms Sibisi did not have, but she (Ms Sibisi) was given robotics to teach. She believed Ms Sibisi was favoured because she was the fiancée of Mr Mandlevu who was in the CMT. Her (applicant) classes were given to Ms Sibisi in 2023. It was Makonyane who said that it was her supervisor, TT Lubisi, who said he should allocate her subjects to Ms Sibisi. Makonyane was one of the lecturers responsible for the time table then, but he since left the college.

2nd witness, Bongumusa Ndlovu(Ndlovu) testified under oath as follows:

15. He was the former employee of the college. He was working on the NATED engineering and later went to teach in the NCV, but still under Civil engineering. Under NATED, the senior lecturer was Mr Mandlevu and Tshigodime was the DH. Under NCV he was reporting to Tshigodime, that is, under engineering section, see page 2 of bundle A. One senior lecturer made sexual advances to the applicant and nothing happened to him. They discarded the applicant in favour of Ms Sibisi.
16. The applicant arrived at the college before Ms Sibisi., the applicant was unfairly dismissed because she had her own subjects and the management made sure that they discarded her to open the space for Ms Sibisi who was given a VIP status. Ms Sibisi was the mother to Mr Mandlevu’s children.
17. He also heard that the applicant was deprived of the PPEs by TT Lubisi though he did not hear it from the applicant herself. Mr Mandlevu and the other CMT members would be able to make favours for one another; hence they crossed Ms Sibisi from NATED to NCV with the purpose of securing her appointment. There was no proof to that effect, but any person could see it. That was his and the other lecturers’ opinions.
18. He did not know of any reasons to change Ms Sibisi’s subjects. He knew for a fact that the applicant joined the college before Ms Sibisi but he did not know about the dates. The applicant did not only report once about her complaints. He knew about the sexual incident the applicant reported and it was not attended to. He heard about the incidents from the applicant herself in December 2024. He, however did not see the explicit sexual pictures sent to the applicant by TT Lubisi. The applicant was eliminated by the CMT because she complained about the sexual abuse and that she was standing in the place of Ms Sibisi. He, however, did not know what was discussed by the CMT.
19. During re-examination he testified that he did not need to be a supervisor to know the timetable. He did not need to sign a document to receive the time table. He was a good witness because he was at the campus and part of the organisation, hence he would know what was happening. He did not have to be part of the management to know what was happening at the college. He shared experiences with the applicant because they were both under fire. He knew that the applicant did not have the PPEs, for instance for the practical work. It was possible to know what was happening even if one was not in management. He moved from NATED to NCV in September 2023.There was no reasons announced as to why he left the NATED.

3rd witness, Clifford Thobejane (Thobejane), testified under oath as follows:

20. He was a lecturer at the college lecturing engineering subjects. He was also a secretary of NEHAWU. He was aware of the information contained in the minutes on page 20 of bundle A. However, the date of the minutes did not correspond with the date on the attendance register. The information on the minutes was a collection of different meetings which were held before. He agreed that there was a discussion about the overstaffing at the college and that some lecturers had to be released, but the issue was, who should leave and who should not. The lecturers received the termination of their contracts on 18 November 2024 but the meeting to decide was held on the 20th of November 2024 which did not make sense. The meeting about staffing which was attended by him (SADTU) DPA ,HRM and the campus management took place in September 2024.
21. The minutes did not reflect what was discussed on that day. Mr Khumalo (acting campus manager) could have signed the minutes on page 20 of bundle R after he received them from members of the management because he was not there when the meeting adjourned. On the register, there were three union members, but on the minutes, it was only one union member which was him. May be his name was only used because he was the one who proposed the meeting. He was only seeing the minutes for the first time in the hearing.

4th witness, Khumbudzo Kennedy Tshigodime (Tshigodime), testified under oath as follows:

22. The applicant was working at Molumati TVET college and he was an acting DH by then. The applicant was employed on contract basis. All the contracts were under the responsibility of the campus manager. When the applicant came to him, he would only refer her to the campus manager but issues of the contract would be checked with head office.
23. He was not dealing with contracts because contracts were the responsibility of the campus manager. He never told the applicant not to worry but that he would refer the matter to the campus manager. The applicant’s grievances were attended to. She was teaching the same subjects taught by Ms Sibisi and there would be a rotation to mitigate the load of work. They chose Ms Sibisi to move to the NCV because the other lecturers were overloaded. However, there were no minutes kept for that process. Mr Mashaba came earlier than both Ms Sibisi and the applicant. He wanted the applicant to stay but the problem was the finances.
24. He remembered the discussion on the minutes shown on page 18 of bundle R but did not remember the date thereof. He knew the content of the minutes but he could not remember the date as to when was the meeting held. The date of the minutes was doubtful. The contract of the applicant was meant to be renewed but that was changed by the central office. If permanent lecturers were not moved to NCV, the applicant would have had classes to teach.
25. He did not know about the alleged sexual advances by the applicant’s supervisor. He did not remember the date the applicant reported that she was not well treated. He informed his superiors and Ntimane about the matter and TT Lubisi apologised to the applicant and it was closed. There was no any other incident of ill-treatment reported to him by the applicant. TT Lubisi was calling and texting her during the night. He did not know what were the calls and texting about. He reported the matter to the campus manager and the matter did not come back again. He did not know if the campus manager intervened, and he never heard of the word u’yamshela”. He further did not hear of the pictures or emojis sent by TT Lubisi to the applicant.
26. He conceded to have told the applicant not to worry but that was because he would report the matter to the manager. The issues raised by the applicant were ill-treatment, boots and locking the class for her. He did not remember the dates. He did not remember the response by the applicant after the apology by TT Lubisi. He did not remember what happened to the issue of the keys. He was not sure who organised that the applicant could use Sibiti’s office in the meantime. The subjects taught by the applicant, were given to Ms Sibisi. TT Lubisi was the one who should have consulted the applicant. It was put to him that in all the problems, TT Lubisi was the common denominator. He did not comment. He was not sure who arrived first between the applicant and Ms Sibisi. He did not remember the applicant teaching NATED subjects. Mr Maswanganyi was initially dismissed but he came back. When Ms Sibisi joined the NCV, the applicant was still there. Ms Sibisi did not appear as one who was going to be terminated because she was paid by the department. All those who were paid by the DHE did not appear on those who were to be terminated. It was not fair to leave Ms Sibisi but terminate the applicant and Mr Mashaba because they arrived early. He did not remember who was teaching the applicant’s subjects when she was on leave. Mr Mandlevu was in the management of NATED and he was the one who decided on releasing Ms Sibisi to NCV.
27. The other lecturers were fully occupied hence Ms Sibisi was chosen. He agreed that perceptions would be created that Ms Sibisi was given a VIP status because she was the wife of Mr Mandlevu. The issue of Ms Sibisi was also dealt with by the central office. Ms Sibisi was teaching IT , robotics and he believed the applicant could teach such subjects as well. Mr Mashaba and the applicant would have been paid by persal at present. The issue of numbers was decided at the central office and he would know about allocation of numbers at the central management meeting. Only lecturers were affected by the understaffing. Electrical engineering was still there. ECD level 3 was still taught as well.

Respondent’s Evidence

1st witness, Daniel Phillimon Nkuna (Nkuna )testified under oath as follows:

28. He was an assistant director responsible for recruitment and selection as well as conditions of service and he knew the applicant. The applicant was not dismissed because she was appointed on a fixed term contract which ended on 31 December 2024. She assumed duties on 16 March 2021. Her contract started in 2021 and it was extended several times. She was appointed and paid by the College Council which did not have an organogram. The college had budgetary constraints and meetings between the management and the unions were held to deal with the matter. The availability of funds and the college’s needs were the factors considered when terminating the applicant’s contract and she was given a notice on 18 November 2024. The renewal of the contractual lecturers was discussed in the meeting on 23 May 2024 and HR was not invited in the discussion held by the College Council.
29. It was possible that one could be employed by the college but paid by the DHE when they are employed in a substantive post which was on the organogram. Courses were not his responsibility but the Academic unit. He was not sure if Ms Sibisi was paid by the DHE. Ms Sibisi was employed earlier than the applicant though he could not remember the exact dates. Ms Sibisi could have been in Engineering but could not differentiate between the two. The applicant was probably also teaching engineering. He would not know how the principal distributed letters to the College applicants. It was put to him that there was no proof that she received the extension. He argued that if the applicant had not received the extensions, she would not have been at the College at that time. He denied that the extension letters were only drafted for the sake of the case.
30. It was put to him that the applicant’s dispute was not about permanent employment, but that she had reasonable expectation for her employment contract to be renewed as it was extended for four years. Enrolment of learners was the responsibility of the campus manager and he did not form part of such discussion.

2nd witness, Busisiwe Mildred Mokoena (Mokoena), testified under oath as follows;

31. She was an HR officer in the recruitment, termination, pension and capturing of allowances. She was reporting to Mr Nkuna. The letters on page 4 to 8 were extension letters for the applicant’s fixed term contract and they were written by her. The campus manager would make a request which should be approved by the principal. The letters would then be distributed back to the campus manager. The letters had a typing error on the subjects. The repeated typing error was due to the use of one template for the different campuses. She was using the same letter of extension for the applicant and only amended the dates.
32. The advert on page 4 of bundle A was urgent because they were meant for replacement. Shortlisting and interviews were conducted by the individual campuses. It was put to her that the dispute was not about permanent employment but extension of the contract. She was asked how could the respondent issue a termination and advertise the post two months later. She did not comment. It was put to her that she did not have a comment because she was hiding information. She responded that she was not hiding anything.
    She was not a decision maker on adverts, recruitments etc. She could not question an approved document. She would only implement the approved documents and without questioning anyone.

3rd witness, Sikhumbuzo Khumalo (Khumalo), testified under oath as follows;

33. He was the acting college campus manager responsible for the overall management at the campus to advance the objective of teaching and learning. The applicant was employed on a fixed term renewable contract which ultimately came to an end. The management embarked on the process of reducing the number of lecturers due to budgetary constraint and the underutilisation of some lecturers. That was aggravated by the decreasing number of the roll. The Head office started to face out the NATED subjects as well. Some permanent lecturers were moved from the NATED stream to the NCV stream and the contracts of five lecturers including the applicant, were not renewed. Ms Sibisi’s contract was not terminated and she was given more subjects to teach in the NCV stream. Ms Sibisi competed with the applicant for the post occupied by the applicant but she was not successful. She was only picked up to replace Mr Maswanganyi who disappeared without trace. All the stake holders including labour were involved during the process of terminating the contracts of the fixed term employees. The allocation of the subjects in the NCV stream, was done by the senior lecturers namely TT Lubisi and Tshigodime. The applicant was reporting to TT Lubisi who in turn was reporting to Tshigodime. In the NATED stream, it was Mandlevu who worked with the departmental head to allocate the subjects. When Maswanganyi returned, Ms Sibisi was not released but continued working. Mr Mashaba joined the college before Ms Sibisi and the applicant. His contract was terminated because it was agreed that he would be absorbed at Barberton campus. The college used curriculum needs and LIFO to decide whose contract should be terminated. He conceded that Mr Mashaba’s contract should have been terminated if LIFO was used as one of the criteria. He conceded that Ms Sibisi was in the VIP and paid by the DHE despite her having arrived at the college after Mr Mashaba and the applicant. Mr Mandlevu was the education specialist and he was the husband of Ms Sibisi. He (Mandlevu) and TT Lubisi would be the ones to decide who should be shifted to the NCV or who to report to a particular supervisor.

4th witness, Bongani Christopher Kwayiyo (Bongani) testified under oath as follows;

34. He was the deputy principal academic responsible for effective teaching and learning and he was initially the campus manager responsible for the management of the campus. Campus managers, curriculum and exam managers were reporting to him. Campus manager also reported to him on HR and equipment matters. The Executive management had a meeting on overstaffing where they looked at the number of learners. The College was overspending when coming to salaries. The meeting at the campuses were consultative and letters were to be issued for the termination of the lecturers on fixed term contract. The union tried to persuade them not to terminate but it was explained to them that it was due to budgetary constraint. The campus management was expected to make their own needs looking at the subjects. . When determining the need, they look at the numbers, e.g. 15 learners would then form a class. He never heard of a lecturer who never received the extension, otherwise they would visit his office because they might not work or receive a salary. His office never received a complaint from the staff. The college had a labour forum and a presentation was made to that forum about the budgetary constraint, hence there was no challenge from them. The non-renewal of contracts happened to all the campuses but Kanyamazane and Barberton because they were not overstaffed.
35. Molumati gave them the names of the lecturers alongside the subjects taught by those lecturers. Identification of who to leave or not, was the responsibility of campuses. They relied on the campus manager’s motivation to approve the request. The campus manager would rely on the management’s contribution. The college was overstaffed because of the decrease in numbers and shortage of funds and the Minister signed a white paper in 2022 to face out NATED. At Molumati campus, the campus manager and SADTU sit in the CIC meetings. The CIC would sit with the management before submitting the needs. The decision as to who should be paid by VIP or persal, depended on the needs of each campus. It was the responsibility of the campus to choose who should be paid through persal. The CMT would be the one communicating with those not unionised. Overstaffing was not out of own creation.

Analysis of the evidence and arguments

36. The dispute before me was about unfair dismissal of the applicant in terms of section 186(1)(b)(i) of the LRA which provides that (1) dismissal means that —(b) an applicant employed in terms of a fixed term contract of employment, reasonably expected the respondent to (i) renew a fixed term contract of employment on the same or similar terms but the respondent offered to renew it on less favourable terms, or did not renew it. However, the evidence led by the applicant was based on the processes followed and the unfair treatment she received from the management.
37. Undisputed versions.
    (i) The applicant was employed on a fixed term contract paid by the College Council.
    (ii) The applicant’s contract was renewed on several occasions since 2021 until it was not renewed after it ended on 31 December 2024.
    (iii) Ms Sibisi and the applicant competed for the same post occupied by the applicant.
    (iv) The applicant obtained position one during the interviews and she was appointed while Ms Sibisi obtained position two and she was not appointed.
    (v) Ms Sibisi was later robed in to teach in the NATED stream, replacing Mr Maswanganyi who disappeared without trace.
    (vi) Mr Maswanganyi returned but Ms Sibisi was retained.
    (vii) The applicant was qualified to teach the subjects which were taught by Ms Sibisi and vice versa.
    (viii) The applicant was trained in robotics and Ms Sibisi was not.
    (ix) Ms Sibisi failed interviews two times before joining the college.
    (x) Mr Mandlevu was in the management team(CMT) as he was a senior lecturer.
    (xi) Mr Mandlevu had children with Ms Sibisi.
    (xii) Mr Mashaba and the applicant arrived at the college before Ms Sibisi.
    (xiii) Just like the applicant, Mr Mashaba’s contract was terminated, while Ms Sibisi who arrived after the two, remained.
    (xiv) The college had a budget constraint.
    (xv) The number of learners was dwindling.
    (xvi) The College was overstaffed.
    (xvii) Some fixed term contract lecturers had to be released.
    (xviii) Curriculum requirement and LIFO were some of the criteria used to decide whose contract should not be renewed.
    (xix) The applicant went on maternity leave, and on coming back, her NCV subjects were given to Ms Sibisi.
    (xx) Ms Sibisi was employed to teach NATED subjects while the applicant was employed to teach in the NCV stream.
    (xxi) Ms Sibisi was employed without following the due processes of recruitment and selection, she was just picked up.
38. Disputed versions.
    (i). The applicant was not dismissed but her contract came to an end.
    (ii). The applicant’s termination was not influenced by the relationship between Mr Mandlevu and Ms Sibisi.
    (iii). Ms Sibisi was chosen to remain employed because she was a wife to Mr Mandlevu.
    (iv). The applicant was unfairly treated because she declined TT Lubisi’s sexual advances.
    (v) TT Lubisi influenced Mr Mandlevu to take the NCV subjects away from the applicant.
39. In my assessment, I agree with the respondent in its closing arguments where caselaw of Majambe v Unisa was referred to, that renewal of a fixed term contract does not automatically constitute an expectation for the renewal. The respondent further argued that in the applicant’s contract of employment there was a clause indicating that the renewal of her contract was in no way meaning to create legitimate expectation for the renewal. However, the courts held different views on the dispute of legitimate expectation to renew a fixed term contract due to different merits of each case, for instance, in Thiso & others v King Dalindyebo municipality (p437/03) [2005] ZALC47, the court held that a contract which was rolled over four times created an expectation to renew it. Sactwu & others v Cadema Industries (Pty) Ltd, {2008} 8 BLLR 7990 (LC), it was held that a renewal of contract four times created expectation to continue renewing it depending on the availability of work. In my view in this case, the contention was on how the process of terminating and renewing the fixed term contracts was handled. The bulk of the parties’ evidence was based on the process rather than the reasonable or legitimate expectations factors per se. I will also in my assessment of the matter dwell much on the processes. The arguments were centred around the unfair treatment of the applicant and the paving of a way to make sure that Ms Sibisi’s fixed term contract was not affected at the expense of the applicant’s fixed term contract.
40. Ms Sibisi competed for the post which was advertised by the college with the applicant around February/March 2021. That post was advertised for the NCV subjects. The applicant was picked up as the successful candidate by the interviewing panel and she was as a result appointed to teach the NCV subjects (engineering, Maths and related). At the time of appointing the applicant, Ms Sibisi was not employed. One lecturer, Mr Maswanganyi, who was teaching the NATED stream, disappeared from the college without trace around the same period in 2021. The College saw a need to replace Mr Maswanganyi. They however, did not advertise the post, but went and pick up Ms Sibisi to come and replace Mr Maswanganyi, without following due processes. The reason for not following the due processes of recruitment and selection, was, according to the respondent, that Ms Sibisi obtained position two at the time when the applicant was appointed. The second reason the respondent advanced, was that they were avoiding costs involved in the processes of recruitment. The applicant’s version that after returning from maternity leave, she discovered that her subjects were allocated to Ms Sibisi was not disputed. Ms Sibisi was a partner to Mr Mandlevu who served in the CMT and they had children together (this was not disputed).
41. Both the applicant and Ms Sibisi were employed on a fixed term contract and the applicant was earning above the threshold. There were also other lecturers who were employed on a fixed term contract at the college, Mr Mashaba was one of them. Mr Mashaba joined the college before Ms Sibisi and the applicant. Mr Mashaba’s contract, just like the applicant’s, was also terminated in December 2024. The college started to experience hardship in terms of finances. The learners’ roll started to go down and some lecturers were not fully utilised. The department also started to phase out the NATED stream. All relevant stake holders, including labour, held several meetings on the subject to discuss how to mitigate the costs, and the declining numbers of the students, especially in the NATED stream. All the stakeholders consented that some lecturers had to be released and five lecturers were agreed upon that their contract should not be renewed in December 2024. That was where the problem started because the applicant was affected and her contract was not renewed but Ms Sibisi’s contract was. She believed Ms Sibisi got advantage because she was a fiancée to Mr Mandlevu who was a member of the CMT. She further believed that the non-renewal of her contract was also influenced by the hate by TT Lubisi who wanted a sexual relationship with her.
42. The respondent witnesses, Tshigodime and Khumalo, testified that the college used curriculum needs and LIFO to decide who should leave. Remember, the issues of budget constraint, underutilisation of lecturers, declining of numbers in the NATED stream, were not disputed by either party. The respondent argued that lecturers on an indefinite contract (permanent ) from NATED stream, were moved to the NCV stream because in reducing the number of lecturers, fixed term contract lecturers would be the ones affected. When they moved indefinite lecturers to the NCV stream, the applicant was affected and her contract had to be terminated. The move of permanent lecturers from NATED to NCV, included Ms Sibisi. The contention was why, because Ms Sibisi was not employed on an indefinite contract. This is also my question. The respondent further did not substantiate with evidence as to why Ms Sibisi’s contract did not terminate when the owner of the post, Mr Mswanganyi returned. Remember the post which was occupied by Ms Sibisi was not a substantive one, but temporary. The criteria, LIFO, means last in first out. The criteria, curriculum needs, in my understanding, refers to a situation where for instance, the curriculum takes precedence. For example, if A who teaches History arrived before B who teaches Maths alone, and there are other lecturers who also teach History, B might survive LIFO.
43. Now let’s look at Ms Sibisi and the applicant. The applicant competed for the NCV post with Ms Sibisi and the applicant was successful and appointed. Ms Sibisi obtained position two and she was not appointed. Just on this point, who was appointed first; to me, it was obviously the applicant. The applicant was appointed through the processes of recruitment and selection, no dispute about it. Ms Sibisi was picked up from home, without following the due process, to come and replace Mr Maswanganyi in the NATED stream. The respondent did not even lead evidence to elaborate as to which authority, mandate and or policy did they use to just pick up a person who lost in the interviews and employ her. To me, that was unacceptable in the absence of the policy directives or related mandates. The applicant was therefore teaching NCV subjects and Ms Sibisi was teaching NATED subjects. In terms of curriculum needs as well as in terms of LIFO, the applicant was in a better position to survive the termination than Ms Sibisi. The argument that the applicant assumed duties after Ms Sibisi had already done so, cannot take away the fact that the applicant was employed at the college before Ms Sibisi. To report for duty before the person who was employed before, does not change who joined the organisation first. How could a person who lost in the interviews, be the first to be employed before the person who was successful in the same interviews and for the same position. This does not make sense on the balance of probabilities. When Ms Sibisi was moved to NCV, she was also given Robotics subjects. Surprisingly, she was not trained in Robotics but the applicant was. The respondent did not lead evidence on the rationale behind that decision. The applicant testified that it was actually the college which sent her for training in Robotics, but Robotics was allocated to Ms Sibisi, and this was not a fair treatment to the applicant. The move also amounted to wasteful expenditure in my view. Remember that the college experienced financial hardships and some lecturers were underutilised, but still lecturers are taken for training in a particular subject but such subjects are allocated to the one who was not trained. I do not see any logic in that move on the balance of probabilities.
44. In the above assessment, I am trying to show that there were some irregularities during the termination of the applicant’s fixed term contract. My assessment does not in any way suggest that the non-renewal of the five fixed term contract lecturers was without grounds, not at all, I am only trying to determine the fairness of the process with regard to one, i.e. the applicant. The decision per se, to reduce the number of lecturers was not in dispute. Looking at what happened, e.g. Ms Sibisi failed the interviews, she was picked up later to replace Maswanganyi in the NATED without following due processes, when Mr Maswanganyi returned, she was not released, numbers in the NATED dwindled, Ms Sibisi was shifted to teach in the NCV, Mr Mashaba was pushed out claiming that he was going to be absorbed in Barberton campus (this was disproved by the applicant) because Mr Mashaba was not absorbed but he applied for a post which was advertised in terms of the recruitment and selection processes, Ms Sibisi survived the non-renewal of her fixed term contract, she was the mother of Mr Mandlevu’s children, Mr Mandlevu (senior lecturer) sat in the CMT. Khumalo, the campus manager and the witness of the respondent, confirmed that Mr Mandlevu was the Education Specialist (ES) and he as well as TT Lubisi (supervisor of the applicant) would decide who to report or shifted to NCV and later report to him (Khumalo). TT Lubisi was the one the applicant complained of in terms of unfair treatment and sexual harassment. She testified that their relationship started souring after she declined his sexual advances to her. All the witnesses of the respondent denied the allegation of sexual harassment but the unfair treatment. Whether the applicant reported them to the management or not, that could not corroborate that it did not happen. I cannot, therefore with certainty say that it did happen or not because TT Lubisi was supposed to have come and testify, but he did not. Some of the allegations levelled against TT Lubisi by the applicant, were confirmed by Tshigodime and Khumalo. For instance, Khumalo testified that “the working relationship between TT Lubisi and the applicant as far as he knew, was fine, although there would be a time where they were not seeing eye to eye. There was an issue of subject allocation, where the applicant when coming back from maternity, found that her subjects were given to Ms Sibisi. She also complained about not having given some work material and boots”. Khumalo was the campus manager. His statement corroborated the applicant’s version that she was not treated well by her supervisor and that her subjects were taken away and given to Ms Sibisi. Khumalo, during cross questioning, conceded that the process of determining whose contract was to be renewed or not, was flawed because if LIFO was used, Mr Mashaba could have been excluded. As for Tshigodime, he was scanty most of the time when testifying. He would most of the time say “I am not sure”. His testimony was not helping. Bongani and Nkuna’s testimonies were mostly based on policy matters. They explained fixed term contracts, budgetary constraints at the college, movement of documents etc. They both corroborated each other that it was the responsibility of the college to decide how many lecturers it required as well as which contracts to terminate. It was also the competency of the college to decide which fixed term lecturer should be placed in the VIP and or those to be paid by the department of higher education. The processes of renewing or not renewing the contracts were therefore in the hands of the college management.
45. My view on the balance of probabilities is that, if the process was fairly conducted, Ms Sibisi was supposed to have been the one affected and not the applicant. The argument by the applicant that when she enquired as to why her subjects were taken away and given to Ms Sibisi, she was told that it was TT Lubisi, her supervisor, who told the management to do so, was not challenged by the respondent. Lubisi was not called to come and rebut that version. The applicant’s version that the non-renewal of her contract was influenced by the bad relationship between her and the supervisor, TT Lubisi, is on the balance of probabilities, justified.
46. The issue of the alleged fake renewal letters could not be substantiated, because no institution could pay salary to a person whose contract expired and was not renewed. Whether the applicant received the renewal letters or not, her contract was renewed because she continued working and she was receiving salary. The technicalities that the applicant was not involved in drafting time tables, and that she would not know what was considered in drafting time tables cannot change the fact that she was employed first, she could teach all the subjects taught by Ms Sibisi, she had Robotics which Ms Sibisi did not have and that she was employed to teach in the NCV and Ms Sibisi in the NATED.
47. My finding on the balance of probabilities is therefore that, the process of renewal and non-renewal of the fixed term contracts at the college was irregular and the applicant was, as a result treated unfairly. In her relief, the applicant sought to be reinstated and to be compensated. Looking at the state of affairs at the college through the evidence led, there was no dispute that the number of the learners at the college was dwindling. It was also not disputed that the college was experiencing budgetary difficulties, even the witness from Labour (Thobejane), did not dispute that. There was also no dispute that most lecturers were under-utilised and that the college had to decide on costs cutting mechanisms to mitigate that. It was also not disputed that some fixed term contracts of the lecturers could not be renewed when they came to an end in December 2024. In the light of the above, it’s my view on the balance of probabilities that it would be not practicable to reinstate the applicant. I therefore find it fair to order compensation of five months’ salary to be paid to the applicant. In ordering this relief, I considered the financial circumstances of the college which was not disputed during the evidence by both the parties. I also considered remedies in unfair dismissals and unfair labour practice as provided for in section 193 (1) (a) and (2)(c) of the LRA, which provides that if the arbitrator finds that the dismissal of an applicant was unfair, the arbitrator may order the respondent to reinstate the applicant unless, (2)(c) it is not reasonably practicable for the respondent to re-instate or re-employ the applicant (paraphrased). Lastly, I considered the fact that the applicant was not employed at the time of the arbitration. In my view and on the balance of probabilities, all the factors I considered in this relief make the compensation to be equitable and fair. Award
48. The processes which led to the termination of the applicant’s contract by the respondent, was unfair. The termination of the applicant’s contract of employment was therefore unfair.
49. The respondent is ordered to pay the applicant an amount of R154,000-00, which is equivalent to the applicant’s monthly salary of R30,800-00 multiplied by five months.
50. The amount in paragraph 49 above, must be paid to the applicant on or before 22 December 2025, failing which interest shall accrue.
51. No order on costs.

Seretse Masete Date 20/11/2025
ELRC Panellist