Case Number: ELRC886-23/24 KZN
Commissioner: Protas Cele
Date of Award: 22 April 2025

In the ARBITRATION between

NEHAWU obo Thandazile Patience Manqele

(Union / Applicant)

And

Coastal KZN TVET College

(Respondent)

Details of hearing and representation

1. The matter was set down for arbitration at the Tooling Centre of Excellence in Durban on 30 July 2024, 27 August 2024, 29 – 31 January 2025 and 25 March 2025.
2. The Applicant appeared in person and was represented by Thulani Gabela, an official from NEHAWU, who led the evidence of one witness. Mpumelelo Zikalala from Zikalala Attorneys INC appeared on behalf of the Respondent and led the evidence of three witnesses.
3. Thulani produced bundles of documents which were marked bundle B(B-2), bundle C (C1 – 44) and bundle D (D1 -4). Mpumelelo presented bundles which were marked bundle A (A1 – 242), bundle E (E1 – 57) and bundle F (F1 – 4) respectively.
4. The proceedings were conducted in English and digitally recorded and the parties submitted their closing arguments in writing. Preliminary Issue(s)
5. On 30 July 2024 the Respondent’s application for legal representation was granted after I concluded that it would be unreasonable to expect the Respondent to deal with the dispute without legal representation. The parties had also agreed in their pre-arbitration minute for the Applicant to be represented by the Union (NEHAWU) and the College to be represented by a legal practitioner.
6. The dispute in respect of the following thirteen Applicants was dismissed in terms of section 138 (5)(a) of the LRA when they failed to appear at the commencement of the proceedings on 27 August 2024 and had not instructed the Union to the contrary:

a. BR Hadebe, TF Ndelu, K Blankenberg, XAP Ndlovu, XAP Xaba, ZP Ntuli, SM Khize, TS Mbotho, S Zulu, PA Zuma, MT Cele, T Ndlela and NT Mnomiya.

Issue(s) to be decided

7. I am required to decide whether or not the non-renewal or termination of the Applicant’s fixed-term contract constituted an unfair dismissal in terms of section 186(1)(b)(i) of the Labour Relations Act 66 of 1995 (The ACT), as amended.

Background to the dispute

8. The Facts set out below were either agreed or not disputed:

a. That the Applicant was employed by the Respondent on a fixed-term contract as a post level 1 lecturer from 18 July 2016 and placed at the Respondent’s Ubuhle Bogu Campus;

b. That for the duration of her employment she worked on successive fixed-term contracts until 29 February 2024 after her last contract was not renewed by the Respondent;

c. That during her last contract she earned an annual salary of R304,646.00 plus 37% of her monthly salary in lieu of service benefits as a contract worker; and

d. That the fixed-term contracts in respect of thirteen other lecturers who were placed at different campuses were also not renewed when they expired on 31 December 2023.

Survey of evidence and arguments.

9. I am required in terms of section 138(7)(a) of the LRA to issue an arbitration award with brief reasons. What follows hereunder is therefore not an exhaustive survey of all the evidence led and arguments presented but a brief summary of the salient issues relevant to my findings only.

Applicant’s evidence

10. The Applicant testified on her own behalf and stated that she commenced employment with the Respondent on a fixed-term contract on 18 July 2016 as a post level 1 lecturer. Prior to that she worked as an educator, post level 1, in the Department of Basic Education.
11. She was placed at Ubuhle Bogu Campus and the duration of her contract was limited to two months until 18 September 2016. The former Campus Manager, Mr Mazibuko subsequently called her and told her to continue to work until December 2016. The appointment letter was only issued in December and backdated and no reason was provided by the Respondent (A157).
12. She worked beyond the duration of her contract until December 2016, substituting for Ms Ngcwensa who was on leave. In January 2017 she was called back to the campus to work from January until February 2017 but she did not sign a contract. She did not work during the month of March 2017 because the Respondent told her that there was no money but she rendered her services again on a continuous basis from April 2017 until December 2019. During this period the contracts were given to her any time during the year.
13. She stated that from 1 January 2020 she signed recurring contracts until 31 December 2023. She worked in January 2024 but on 18 January 2024 she received a letter from the Respondent stating that her contract would not be renewed (B2). She contacted the HR manager to investigate and also reported the matter to NEHAWU.
14. Her contract had expired in December 2023 and she was confused when she received the notice of non-renewal on 18 January 2024 at the time when she was expecting to be given a new contract. In response to her query the HR Manager advised in a letter dated 3 April 2024 (B1), that she had not taught any of the subjects that had vacancies at the Campus and therefore she was not amongst those who were considered for placement in the persal posts at the time.
15. She explained that in January 2024 when she asked her supervisor, Mr Bele, after hearing that some of her colleagues were going to be terminated, Mr Bele told her that she was not one of them. She disputed the reasons given by the HR Manager in the letter dated 3 April 2024.
16. She stated that she was teaching Office Administration Subjects i.e. Business Practice level 1 and 2 and Tourism subjects, namely Client Service level 1 and 2 which were still offered by the Respondent and also had students. The only subject she was not teaching is English.
17. She expected her contract to be renewed and subsequently to be permanently employed because her workload was available and the intake of students was still open and the registration was underway. She also heard that Ms Ngcwensa was allocated subjects which she was teaching. Mr Nduli who was employed in 2020 when she was already working for the Respondent was identified for migration to a persal post.
18. She stated that she was unfairly dismissed by the Respondent in that she reasonably expected her fixed-term contract to be renewed. She asked to be reinstated or compensated for the unfair dismissal.
19. During cross-examination she stated that she has a Senior Primary Teachers Diploma, Higher Diploma in Education, Honours degree in Education and that she is currently pursuing a Masters degree in Education.
20. She conceded that she was employed on contract basis and not on permanent basis and that she would be invited back when her services were required. She admitted that she considered herself bound by the contract considering her level of education and experience.
21. She did not dispute that in terms of her contract (A172 par 4.1) the position she was offered was as a result of a temporary increase in the workload and that the period of the fixed-term contract was not expected to exceed 12 months.
22. She also conceded that the workload depends on students, subjects and money. She initially denied that she knew about the Post-Provisioning Norm (PPN) but when it was put to her that a circular came out on 30 November 2022 and that roadshows were conducted, she admitted that she attended one of the road shows at the college.
23. She stated that Mr LCW Nduli has a Masters Degree and that to her knowledge he is currently doing his PHD. The allocation of English to him was orchestrated to keep him and it was unfair to accommodate him when he only joined the employ of the Respondent in 2020.
24. She admitted that the number of students has decreased through the years.
    When it was put to her that she was not permanent but she was on a fixed-term contract and that there were no actions by the Respondent which would have given her an expectation of the renewal of her contract, she stated that she expected to continue to work.
25. When it was further put to her that the funding has gone down, she stated that the Respondent is paying Mr Nduli and that he is the one who should have been terminated. Both of them have teaching qualifications but she was employed first. He was given English in order to retain him hence he is the one who was identified for migration.

Respondent’s evidence

26. Azwindini Iris Kamulumisi is employed by the Respondent as a Deputy Principal, Financial Services, since 1 September 2019. She testified that her responsibility is to oversee the financial services of the college including the appointment of service providers and to ensure that there is financial stability at the college.
27. She also monitors to ensure that each and every cent that is coming out of the college complies with certain regulations, inter alia the financial management policies because they also have an auditor general who comes and audit them each and every financial year.
28. In terms of funding the operations of the college they start by preparing a five-year strategic plan followed by an annual strategic plan, which also has an annual performance plan, to be able to deliver in terms of teaching and learning.
29. In the annual performance plan, they breakdown the needs of resources in order to be able to deliver in terms of teaching and learning. There is also a funding grid which is a template from the Department of Higher Education which is analysing the financial needs of the college.
30. In the grid they indicate the resources they will need for the particular financial year. The document will indicate the resources they require in terms of the lecturer, the programmes that they will offer for that particular year and also the resources needed for funding the students like tuition fees.
31. In addition. there is also an operational funding which will indicate which additional resources will be required i.e. buying stationery, paying utilities and other bills. The last one is capital expenditure which is for the maintenance of the building, students’ residences and purchasing of vehicles and trucks to assist in the maintenance of the college.
32. She stated that the funding grid is submitted to the Department in October/November after the submission of the strategic plan in September. It will then get provisionally approved in February and then finally approved after the budget speech in March.
33. Campus Managers are also part of the completion of the funding grid. In their plan they will indicate their need in terms of the workload. This will entail the indication of the number of students they intend to enrol, how many classes and lecturers they will need.
34. She testified that from 2019 the trend was that the need was getting lesser and lesser which also affected the funding to be lesser. An example would be when the Department of Higher Education indicated that certain courses were no longer going to be offered in that year which meant that the amount of funding would be less based on the number of students.
35. If the funding allocated for the year is less than the previous years’ funding they do College operational budget and apply cost containing measures where they break it down to indicate how they will utilize the financial resources that they are getting from the Department.
36. The effect of the deficit on the ground is that it affects other operations. They do not compromise teaching and learning but in instances where they are unable to have a full class they do not get assistance from the Department in terms of funding. The minimum number of students per class is 25 and the maximum is 30 and the lesser the class the lesser the funding.
37. She stated that on 16 & 17 January 2024 they had an extended management meeting which included Campus Managers, Unit Managers and field Sector managers at Swinton Campus. They discussed amongst other things the Financial status of the College, approvals and enrolment, the target and the pledge for each and every campus. She attended this meeting because she was also part of the agenda.
38. In her presentation at the meeting on the financial status of the college (A241 par 6.4) she noted that the college was running at a financial loss and that there was an indication based on the existing budget projections, that the college would not have sufficient funds to sustain the payment of all council paid salaries.
39. The college expenditure was also analysed as well as the allocated funding for operational needs. She noted that Council paid salaries should not be part of funding intended for the resources required for effective teaching and learning. She also noted that the college should not utilise DHET Funding earmarked for operations, goods and services to support teaching and learning, for the payment of council staff salaries.
40. She testified that council paid salaries are salaries of the employees appointed by the college and approved by the council. Some of them are permanent and others are on contract. Contract employees are divided into two categories. The first category comprises of lecturers who are under persal, permanent and paid by the Department and the second are contract lecturers either permanent or on contract who are paid by the college.
41. Contract lecturers are deployed based on the need of a particular financial year once the campus mangers have compiled their workload. Priority is given to permanent lecturers who do not have a workload before it is given to a contract lecturer.
42. She testified that in 2019 they had an approved allocation for enrolment of 15,775 students for the whole college i.e. all campuses. In 2020 it dropped to 13,310, in 2021 it further dropped to 13,031, in 2022 it dropped further 12,750, in 2023 it was 12,510 and in 2024 it went down to 10,955 students (A231).
43. She stated that in terms of their cash flow projection they had a deficit of R17,543,584.49 in January 2024 and a further deficit of R16,284,750.24 in March 2024. The effect of the deficit was that they would not be able to pay salaries to the lecturers. Secondly, they had to negotiate with the Unions about a payment plan for bonuses which were due in December 2023 because they did not have enough money.
44. During cross-examination she stated that they do not compromise teaching and learning in the sense that they do no compromise the budget allocated for teaching and learning and utilize if for something else.
45. She stated that the provisional approval of the funding is based on target and the final approval in based on the total enrolment when the registration is finally completed. When it was put to her that the Applicant was terminated in January before the final approval and when the registration of students was still underway, she stated that by December 2023 they would have known that certain programmes would not be continued and that the workload would be low.
46. The workload is determined from December before the start of the financial year. Analysis of the needs would have been done when the Applicant was terminated which indicate the programme to be offered and how many lecturers would be required based on the number of students.
47. She confirmed that they scrutinise the submissions from the Campus Managers and stated that they ask them to give motivation when they come with their files for allocation to present, indicating the workload and the number of lecturers they require. She also confirmed that the projected financial loss was another reason for the termination.
48. She disputed that the reduction of the workload and the budget are operational matters and stated that they are instead strategic planning matters. When she was asked about the cash flow projections and the financial status of the college (A232) she stated that the Department gives them approved programmes which will determine the funding which in turn will determine the workload.
49. The budget they will get will be in line with the PPN which is approved by the Department. She disputed that the reasons given by the Respondent for the termination or non-renewal of the Applicant’s contract are not rational, namely, the workload, budget and the projected financial loss.
50. Ramjeev Ramdev is the HR Manager of the Respondent employed in June 2017. He is currently an Acting Corporate Manager since May 2024. He testified that his regular duties with regard to HR are inter alia, recruitment and selection of staff, Conditions of Service, Labour Relations Matters, Management of Performance of staff and training and development.
51. In terms of recruitment the need for vacancies may arise for various reasons i.e. a person resigning, retiring or passing on. It may also arise from the need to appoint staff for a special project or to appoint support staff or additional academic staff because of a temporary increase in the enrolment subject to the availability of funding.
52. The recruitment of support staff and additional academic staff is done in terms of the approved Post Establishment structure which relates to an approved organogram.
53. He stated that previously there was no formal structure for TVET Colleges. Since 2016 the Department introduced an approved structure referred to as the PPN Model based on the enrolment, support staff and academic staff that is required.
54. The support staff is appointed mainly for the purpose of administration in support of teaching and learning i.e. exam clerk, supply chain management clerk or general assistant. The academic staff is appointed primarily for teaching and learning.
55. The implications of the structure on the Colleges was that they must align themselves to the allocation of the posts which they qualify for in terms of staff. He distinguished between persal paid employees which are paid by the Department and Council paid employees who are paid from the college council funds which are approved by the Department for operational costs, maintenance of infrastructure etc.
56. He explained that the PPN model warranted the matching and placement process of existing staff within a period of three years. The fund they receive varies subject to National Treasury’s rules and regulations.
57. When funding is given they receive a letter giving a breakdown of the funding in terms of increases of staff salaries, special needs of the learners and also about programmes.
58. He testified that the PPN model required each College to constitute a College implementation committee to deliberate on the implementation of the Model and to ensure fairness and transparency in the allocation of both academic and support posts in terms of the matching and placement of staff as well (A208).
59. The allocation of posts for support and academic staff was according to the size of the campus. Ubuhle Bogu Campus is the smallest campus and as such it was allocated 1 senior lecturer and 9 lecturers for business studies (A215). The requirement is that each lecturer must have a full lecturing load of 25 hours per week.
60. The College would enter into a fixed-term contract with an employee based on the need i.e. temporary increase in the enrolment or perhaps there is a person who is on long term incapacity leave for illness or the College unable to fill the substantive post for various reasons which may include funding etc. The contract will have a start and end date.
61. The determination of the needs of the College is done in the latter part of the year in consultation with campus management where they motivate why they need additional staff.
62. In February 2023 and in terms of preparations for that year there was a review of the enrolment, allocation of workload and available of funding. There were also communications from the department with regards to cost cutting measures as per the directive from the National Treasury. Campus management made presentations to the senior management, indicating the need for the various subjects they offer and the number of lecturers.
63. Various meetings and consultations were held with the extended College Management highlighting the financial situation of the College and the need first and for most to adhere to the PPN Model which had been introduced for all TVET Colleges.
64. He testified that he attended the Labour Forum meeting on 17 January 2024 at Swinton Campus and did a presentation on fixed-term contracts. The context of the presentation highlighted the need for campuses to be guided by the PPN allocation for the college when distributing lecture workloads.
65. It also highlighted that the fixed-term contracts of 47 lecturers would be subjected to a verification process to justify the need for the continued employment of the lecturers. It further highlighted that in terms of the PPN Model there would be a matching and placement process (A241 par 6.5).
66. He stated that as Human Resource Management they were the custodian of ensuring the implementation of the PPN Model and processes so that persons who had queries with the process would contact HR.
67. A letter was sent to the Applicant on 5 December 2023 and the purpose was to advise lecturers who were employed on a fixed-term contract that there was a process that was going to unfold (E1).
68. The process was going to involve a verification exercise in terms of ensuring that the College was in line with the PPN Model and a review of the operational requirements to be able to sustain the operational requirements. The PPN process was also discussed at the labour forums.
69. They noted the contents of the circular on Collective Agreement 2 of 2013 regarding the establishment of parity between conditions of service of College appointed staff in public FET Colleges with those employed in the Public Service. They ensured that the staff were not compromised in terms of the conditions of service (E55-57).
70. During cross-examination he stated that if there are excess staff they look at the need and if there is no work they terminate. In the case of the Applicant there was no post for her because she was unmatched.
71. He disputed that there was an expectation of renewal and stated that she was on fixed-term contract in respect of all the years from 2016 and that the law does not prescribe how many times the contract may be renewed. The renewal was based on a temporary increase in the enrolment.
72. Campus Management and Senior Management did projections and in January 2024 there was a needs analysis and they came to the view that if there is no workload then there is no work.
73. When it was put to him that the Applicant was lecturing Business Practice level 1 and 2 and Client Service level 1 and 2 and that there were students for these subjects, he stated that although he is not from the academic division but probably there would have been re-allocation of work. There was consultation on policy and process with staff who were on fixed-term contracts.
74. He stated that the allocation of subjects is done by campuses and not by HR. It would probably be that the campus found suitability in the lecturers who were identified for migration i.e. SP Mngadi and LCW Nduli (B1). In the case of the Applicant the question would be whether she was teaching that particular subject at the start of the process and not for how long she was teaching because that is not the criteria.
75. He disputed that the letter which was sent to the Applicant on 5 December 2023 on its own raised an expectation of renewal (E1) and that the termination of the Applicant did not comply with any legislation including the notice which was not done on time.
76. He also disputed that the fact that other lecturers who were initially terminated and subsequently called back renders the non-renewal of the Applicant’s contract to be unfair. The termination was based on the enrolment, distribution of the workload, the issue of finance and also that the college had to align with the PPN.
77. He conceded that the PPN document states that no employee shall lose his or her employment, disadvantaged or unfairly prejudiced in any way as a result of the implementation of the PPN Model (C10/44 par 6.2.1.8) but stated that the document should not be read in isolation. The document further states that the employees who could not be accommodated on Persal should then be accommodated on the college payroll subject to the availability of funding (C19/44 par 6.3.2 (b)).
78. When it was further put to him that the Financial year was not over when the Applicant was terminated, he stated that in accounting one can make projections. There was a genuine plight and they had to resort to cost cutting measures. The staff who were unmatched were apprised. There were roadshows and question and answer sessions.
79. The staff who were subsequently brought back were not new. There were certain reasons for their contracts to be renewed i.e. other staff were either on maternity leave, sick leave or had passed on and hence they were given 3 to 6 month-contracts. He denied that the Applicant was terminated to accommodate Mr Nduli.
80. He disputed that in terms of ELRC Collective agreement the Applicant was eligible for permanent appointment because she had more than 12 months period of service with the Respondent (D1 par 1). He stated that she was on a fixed-term contract and that she was not occupying a vacant funded post at the college (D1 par 4.1). Apart from that the PPN gave colleges a certain number of posts and lecturers had to be matched with those posts.
81. Faeema Khan is currently employed by the Respondent as an HOD at Asaalam Campus. She testified that between March 2022 and February 2024 she was an interim Campus Manager for both Asaalam and Ubuhle Bogu Campuses whilst occupying her position of HOD at the same time.
82. She signed the Applicant’s fixed-term contracts on 1 March 2021 and 17 January 2022 and the positions were as a result of a temporary increase in the workload because the number or students increased.
83. The contracts had a start and end date and they were not to be automatically renewed unless there was a need. In terms of the PPN the campus was given a structure with regards to the number of students and Post level 1 & 2 lecturers. It was an instruction, a monster, and Campuses had no say.
84. Roadshows were conducted and Ubuhle Bogu Campus was also visited. It worked well for Ubuhle Bogu because it had only 1 structure of business studies and all persal staff were matched. (F2)
85. All college paid employees who were unmatched were put on unmatched list. When they did the matching and placement they looked at all the criteria to see who is most suitable for the post.
86. At Ubuhle Bogu they needed 1 person for English and Tourism. The Applicant was teaching business practice and client services and she did not have a qualification to back-up English. Mr Nduli had a BA and a Masters degree and had English as part of his studies.
87. Those who were matched were given letters indicating the campus and the position and those who were unmatched were also given letters informing them about their status.
88. During cross-examination she stated that she joined the PPN process during the implementation. Business practice falls under office administration. She did not dispute that in terms of the PPN process the principle was that no one would lose their jobs. She stated that Nduli had a BA in Education with English Practical.
89. When it was put to her that Ms Phewa was given English and assisted by Nomiya when A Luthuli left and that the subject was later given to Nduli, she could not confirm if Ms Phewa was qualified to teach English.
90. She disputed that the PPN was not implemented and in a fair manner and stated that they tried their best but it was not possible for everyone to be matched. It was not about the period of service but according to positions and subjects as well as the availability of funds.

Closing Arguments

91. The closing arguments were too exhaustive to be set out in the Arbitration Award. They were however accepted and considered as constituting a written record of the proceedings.

Analysis of evidence and argument

92. Section 186(1)(b)(i) of the LRA provides that an employee employed in terms of a fixed-term contract of employment reasonably expected the employer 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.
93. In SA Rugby Players Association & Others v SA Rugby (Pty) Ltd & Others, the LAC held that the onus is on the employee to prove that he or she had a reasonable expectation of renewal. The Court further held that to discharge this onus, the employee must place facts before the Commissioner to show on what the expectation was based. The test is objective, it does not focus solely on the employee’s wish or subjective feelings or perceptions.
94. In the present case I considered all the evidence led and arguments presented and also duly perused all the material properly placed before me. I must record that both parties presented their case fairly and in a satisfactory manner.
95. They adequately dealt with all the relevant issues to my satisfaction and also submitted persuasive written closing arguments in support of their case.
96. It is common cause that the Applicant was employed by the Respondent on a fixed-term contract. It is also common cause that the object of the contract was for the Applicant to assist the Respondent during a temporary increase in the workload.
97. In Sindane v Prestige Cleaning Services the LC held that a fixed-term contract terminates by operation of law at the end of its term and that such termination does not constitute a dismissal. In the present case the question is whether the Applicant reasonably harboured an expectation of a continued employment relationship with the Respondent.
98. In her testimony the Applicant mentioned several factors based on which she contends that she had a reasonable expectation that her contract would be renewed. Amongst these factors she mentioned her period of service, the fact that her previous contracts were renewed, the contention that there were still students to be lectured at the college and that her subjects continued to be offered.
99. Her further contention is that in terms for ELRC Collective Agreement no. 2 of 2013 she should have been made permanent because she had been employed on a continuous basis in the college establishment for a period of more than 12 months. She also contended that in terms of the PPN Policy no employee shall lose his or her employment, disadvantaged or unfairly prejudiced as a result of the implementation of the PPN process.
100. She testified on her own behalf as a single witness and the Respondent called three witnesses. The evidence established that the Applicant was on a fixed-term contract. The need for her appointment was based on a temporary increase in the work load. The contract would be renewed based on the need subject to the availability of funds.
101. The financial state of the college was in the decline and the analysis projected a financial loss. The PPN Model was a structure that was given to the College and like all other colleges it had no say but to align itself with the structure in terms of the number of students and academic staff.
102. The evidence further established that the Applicant was not a permanent employee and that unlike Mr Nduli she did not have English as part of her studies. The subject is one of four subjects under Tourism Programme and it is a fundamental subject.
103. In light of this evidence the Applicant’s contention of a reasonable expectation of the renewal of her contract cannot be said to be objective. The Financial state of the college and the matching and placement of staff would have made it inevitable for certain positions or individuals not to be affected.
104. The evidence also established that in instances where programmes or subjects were not discontinued the workload would be distributed to be shared amongst the persal or permanent employees in order to ensure proper utilization of the resources as well as to ensure that they are gainfully employed.
105. I am therefore not persuaded by the reasons proffered by the Applicant for her expectation that her contract would be renewed. Her contention is based on a wish, subjective feelings and perceptions.
106. I accept the Respondent’s version which I have found to be inherently probable based on the evidence of its 3 witnesses whom I found to be credible and reliable. I accept it because I have no reason to reject it. It is therefore my finding on a balance of probabilities that the Applicant failed to discharge the onus placed on her of proving that she had a reasonable expectation of renewal.
107. I therefore make the following award:

Award

108. The Application is dismissed.
109. I make no order as to costs.

P Cele: ELRC Commissioner