Panelist: Maureen de Beer
Case No.: ELRC746-25/26WC
Date of Award: 23 March 2026

In the arbitration between:

TYRONE WILLEMSE

(Union/Applicant)

and

WESTERN CAPE EDUCATION DEPARTMENT

(Respondent)

Details of hearing and representation

1. This matter was arbitrated on 30 January 2026 and 25 February 2026. The applicant, Mr. Tyrone Willemse, conducted his own case. The respondent, the Western Cape Education Department, was represented by its employee relations officer, Mr. Tebogo Seelamo.
2. The matter was referred to the ELRC in terms of section 191 of the Labour Relations Act 66 of 1995, as amended (the LRA); and related to an alleged unfair dismissal.
3. The proceedings were held via MS Teams and were manually and digitally recorded. The parties were also given seven (7) days to provide written closing arguments, which closing arguments were to be submitted by 4 March 2026.

The issue to be determined

4. Since dismissal is disputed, I am required to determine whether the applicant was dismissed. Should I find that a dismissal took place, I must decide whether the applicant’s dismissal was fair. Should I find that the dismissal was unfair, I must award appropriate relief in favour of the applicant.

Background

5. Mr. Willemse was appointed by the respondent on 9 April 2025, as a teacher for Mechanical Technology for grades 10 – 12, at Kasselsvlei Comprehensive High School. His monthly basic salary was R29 331.00. He also received a service benefit of R10 852.47. His last day of employment was 27 June 2025. It was the applicant’s case that he was unfairly dismissed on the latter date.
6. It was the respondent’s case that the applicant was appointed on a fixed term contract that the fixed term contract came to an end; and that there was no dismissal. Willemse denied that he was appointed in terms of a fixed term contract. According to Willemse no contract of employment was issued to him; the term of his employment was never discussed with him; and that the agreement between him and the principal, Mr. Brett Dyers, was that he would be appointed permanently in the post. It was Willemse’s case that he had an expectation to continuing working for the school during the succeeding term. He was then dismissed by the principal on 27 June 2025. He believed that his dismissal was unfair because there were no disciplinary issues against him. He was just told by Dyers that he will no longer be kept at the school.
7. It was the respondent’s case that the applicant was aware that his contract was for a period of three (3) months; that permanency was never promised to the applicant and that no expectation was created for the furtherance of his employment with the school.
8. Willemse requested to be retrospectively reinstated by the respondent, as Mathematics teacher, at the nearest school. Summary of evidence and argument
   The applicant’s evidence and argument
9. Mr. Tyrone Willemse testified that he was contacted by Mr. Dyers on or about 27 March 2025 regarding a Chemical Technology teacher’s post. They met during the school holidays, on 1 April 2025, in Dyers’ office. Willemse informed Dyers that he was employed at Westin High School, on contract, in an Engineering and Graphic Design post. He also informed him that he was qualified to teach grades 10 to 12. Dyers said that he will need him to assist with grade 9 as well, which he agreed to do. He agreed because he wanted to build a relationship with the grade 9s.
10. During his evidence in main Willemse testified that Dyers assured him that he would convert his post from contract to permanent. In cross-examination Willemse testified that Dyers told him that the post would become permanent. Dyers gave him documents and said that the post will go from contract to permanent. He then said that he assumed that the post would become permanent during the following term. He further said that he knew that it takes time for the Department to convert an employee from contract to permanent, but that Dyers said that he that he got the job. Dyers also told him that there was a deviation form, which he needed to complete every three months. According to Willemse he was in a vacant substantive post. When Willemse was asked whether Dyers specifically said that he would be made permanent, Willemse said that Dyers implied it.
11. He completed all the forms given to him by Dyers and sent them back to him via email. None of the forms he received gave him any indication that the post was only for three months. He was never issued with a three-month fixed term contract, nor were the terms and conditions of his contract discussed with him. Had he known that the contract was only for three months, he would not have resigned from his previous position. Willemse also said that he took the post because it was a Mechanical post, which was aligned with his qualifications. Willemse also said that he thought that the contract was “probably” for three months, which will thereafter become permanent.
12. When Willemse was presented with the Nomination for Appointment as Teacher Form, he indicated that the particular form was never shared with him. He only saw it when the case was referred to the Council. This form reflected that his contract period was from 9 April 2025 to 30 June 2025. He signed the Application for a Teacher Post form. He did not regard any of the latter forms as a contract; and also did not agree that the latter two forms were issued to him collectively.
13. The post was vacant. The previous teacher who filled the post retired and thus the post needed to be filled. He expected to stay at the school; do his best and give his best. Willemse also indicated that he had 12 months of experience in the specific field and should have been appointed permanently from the start. In further evidence he also said that he accepted the post in good faith, hoping to become permanent.
14. Willemse also indicated that there were no issues with his work during the period April to June 2025. He, however, mentioned that there was an email concerning the grade 12’s who needed to do theory and physical work. He asked the inspector to come in because the workshop was not properly equipped. He asked the inspector whether he could deviate from the project because different materials were needed. He also communicated this with Dyers.
15. On the last day of the term Dyers called him to the office to say that he will not renew his contract. Dyers informed him that he had thought long and hard; and that in his opinion, he was not renewing his contract. He believed that he was unfairly dismissed because he was never issued with a fixed term contract; he had no disciplinary warnings; and no fair workplace procedures were followed.
16. When the post was advertised, Willemse failed to apply for it. He said that he had already referred a case; and that when Dyers informed him that he could apply for the post, he did not understand why he needed to apply for it.
17. In the Willemse’s closing arguments, he submitted that he was dismissed on 27 June 2025 and that such dismissal was both procedurally and substantively unfair. He further argued that this case was not about the expiry of a fixed term contract. The respondent was unable to prove any misconduct, incapacity, operational requirements, or lawful automatic expiry of a properly communicated fixed-term contract. In the alternative, he argued that his case constituted a dismissal as contemplated in section 186(1)(b) of the LRA due to a reasonable expectation of continued employment. He also mentioned the prejudice and losses he suffered because of him being unemployed.

The respondent’s evidence

18. Mr. Brett Dyers testified in support of the respondent’s case. He confirmed that the school had a vacancy for a specialised post, being Mechanical Engineering/ Mechanical Technology for grades 10, 11 and 12. He was provided with the details of Willemse by the subject advisor. He contacted Willemse and met with him on 1 April 2025. He offered Williams a WCED contract post and not a substitute post. Willemse accepted the post. It was a substantive post, meaning it was vacant. The post was offered for three months, after which there needed to be a reapplication. He could not offer the post to Willemse for longer than three months, since it was a specialised post. All specialised and promotional posts must be advertised in a bulletin. There can be a reapplication for the post with a deviation form. The post must be advertised for a deviation to be granted.
19. Dyers confirmed that he also required Willemse to teach grade 9 students, as the school was a technical school and the subject needed to be promoted to the lower grades. He wrote in the nomination form that the post was for grades 10-12 because it was a specialised post.
20. In respect of the issue of whether there was a contract in place, Dyers testified that the WCED do not issue him with contracts and that the Nomination for Appointment form is the only form that he completes. What was important was the appointment date and termination date. Willemse was nominated for the post of Mr. E Coenraad, who had retired. He testified that he always gives contract appointed teachers copies of this and that there was no way that he would not have given Willemse a copy of this form and would have done the same with Willemse. He believed that Willemse had seen this form. Willemse also completed the Application for Teaching form and signed it. To him, the signing of that form meant that Willemse accepted the terms and conditions of the contract. Dyers believed the form to constitute a contract and that Willemse accepted the terms of the contract. There were no other documents issued by the WCED. The PERSAL system also showed that Willemse was appointed on 10 April 2025 and that his services were terminated on 30 June 2025.
21. Dyers also testified that a conversion can only take place when a person is in the post for longer than six months. He could not offer anyone a permanent post without it being advertised. During cross-examination Dyers denied that he told Willemse that he will appoint or convert him to permanent after a month. He indicated that it was impossible for him to employ someone permanently whom he knew for less than three months; and whose work he never saw. He is governed by directives and cannot go against the WCED.
22. During June/ July 2025 Willemse applied for a Mathematics Level 1 post and an Engineering Graphic and Design post. He also failed to meet the 60% threshold for appointment in these posts. The Mechanical Technology post, which Willemse was in, was also advertised on or about 9 June 2025. Willemse did not apply for the post. According to Dyers only people who applied for the post can be considered for the post. Dyers indicated that the advertisement of the post was posted on the bulletin prior to the termination of Willemse’s services. He also informed Willemse to apply for the post.
23. Dyers confirmed that after the termination of Willemse’s contract, Mr. Coenraad was re-employed in the post for a contract period of six months. He further indicated that he did not extend Willemse’s contract because he needed to look at the wellbeing of the school.
24. With reference to the form for a Request to Deviate from Using the Excess List to Fill a Substantive Vacant Post, Dyers confirmed that such form is used when there are no educators on the access list. They needed the post to be filled when the term started. Dyers pointed out that the form indicated that the post was only for term 2. Willemse pointed out to him that in the block where the post must be motivated, it was written “Pls convert person” Dyers indicated that it was the writing of the circuit director, Ms. Horn, who rectified what she wrote by writing “01 post for term 2”. His circuit director also informed him that the post is only for one term. He could not offer the post against what his circuit director had said.
25. When Willemse questioned Dyers as to why the post was not offered to him, Dyers indicated that he consulted his circuit manager; his two deputies; and his department head. The final call was his decision. It was not an easy decision but for the advantage of the learners, he decided not to renew Willemse’s contract. After being reluctant to testify about disciplinary issues he had with Willemse, Dyers testified that when Willemse started, the curriculum advisors had pointed out to him that Willemse had outstanding marking from Westin High School. He discussed this with Willemse and told him that he would give him a chance. Mr. Kuta gave Willemse guidance and Mr. Coenraad also assisted him with the practical component. There were also other minor issues, such as late coming, etc. Willemse handed in his June question papers late. When it was eventually handed it in, it was also incorrectly done. The biggest problem for him was when Willemse wanted to do the practical component on his own and do “ghost marking”. The learners never did the practical component for that term. The school had to apply to the District Office to do the practical component in term 3 and at the start of term 4. He chose not to inform the Human Resources department, as it would lead to disciplinary action against Willemse. Ghost marking is a very serious issue. His decision not to renew Willemse’s contract was based on the curriculum and not his behaviour or a workshop he attended during June. He believed that Willemse was not the correct fit for the school.
26. Dyers also indicated that he terminated Willemse’s services on 27 June 2025, as that was the last day of the term. He confirmed that Willemse’s contract was until 30 June 2026.
27. In closing it was submitted on behalf of the respondent, that the applicant was not eligible for reinstatement. It was argued that the applicant knew that he was appointed on a contract post, which consisted of an open and end date. The respondent denied that the applicant was promised a renewal of his contract. It was further argued that in any appointment into a post, an application must be made for an employee to be considered, shortlisted and invited for an interview. It was also pointed out that the applicant conceded he was on a contract post for three months. It was argued that the applicant did not discharge the onus to prove a dismissal and that his case must be dismissed.

Analysis of evidence and argument

28. The nature of the applicant’s contract and dismissal was in dispute. I am thus required to determine the nature of the applicant’s employment. I must then determine whether the applicant was dismissed or not. Should I find that the applicant was dismissed, I must determine whether such dismissal was fair or unfair.
29. A contract or agreement requires two or more people to mutually agree to terms and conditions. In terms of common law an agreement can be concluded in writing, verbally and by implication. Section 198B(6) of the LRA stipulates that an offer to employ an employee on a fixed term contract or to renew or extend a fixed term contract, must be in writing. The latter section is, however, not applicable to employees who earn in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act. At the time of the applicant’s employment, the threshold amount was R261 748.45 (R21 812.37). The applicant earned in excess of the threshold amount. Section 198B is thus not applicable to the applicant’s case.
30. The Labor Court in SA Metal (Pty) Ltd v Debbie Lee Holroyd (J 2274/17) [2020] ZALCJHB 32 held that for an employer and employee relationship to exist a written contract of employment is not a requirement. In City of Tshwane Metropolitan Municipality v SALGBC and others (JR 1676/2009) [2011] ZALCJHB 163 the Labour Court concluded that an employment contract comes into effect once a decision (oral or otherwise) in this respect is communicated.
31. Willemse testified that he was never issued with a three-month fixed term contract and that no terms and conditions of employment were ever discussed with him. It was the version of Dyers that the terms were discussed with Willemse during the interview; and that the Nomination for Appointment form constituted a contract. Dyers also said that Willemse was aware of this document, which Willemse denied.
32. In considering the content of the Nomination of Appointment form, it is noted that it contained details of Willemse as a nominee for the post in Mechanical Technology; details of the person who were in the post at the time of nomination; the commencement date of 9 April 2025; the termination date 30 June 2025; that it was a full time post; etc. This form did not contain any other employment terms and conditions. The form clearly states that it is a nomination form. It was also not signed by the applicant, nor was there any provision for him to sign it. The respondent failed to show that the applicant was issued with this form. The form also did not constitute a mutual agreement. Based on the latter, I cannot find that the Nomination form was a written agreement or employment contract. No written contract or agreement thus existed between the parties to show the terms of employment.
33. Since no written agreement was proved, I will now have to consider whether there was any verbal or implied agreement between the parties. Dyers testified that he offered Willemse a three-month WCED contract post, which he accepted. Dyers indicated that he was required to do a reapplication to the WCED, after three months. He could not offer the post to Willemse for longer than three months, since it was a specialised post and that all specialised and promotional posts must be advertised in a bulletin. In Willemse’s own testimony he mentioned that Dyers said that he would convert his post from contract to permanent. He also said that Dyers said that the post would become permanent. Dyers gave him documents and said that the post will go from contract to permanent. He also said that Dyers told him that there was a deviation form, which he needed to complete every three months. Considering the latter, on a balance of probabilities, the only conclusion that I can draw is that the Willemse was aware that he was appointed on a three-month fixed term basis and that he had accepted such appointment.
34. Section 192 of the LRA stipulates that in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. If the existence of the dismissal is established, the employer must prove that the dismissal was fair.
35. Section 186(1) of the LRA, stipulates that –
    “‘Dismissal’ means that-
    (a) an employer has terminated a contract of employment with or without notice;
    (b) 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; or
    (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;

(c) an employer refused to allow an employee to resume work after she-
(i) took maternity leave in terms of any law, collective agreement or her contract of employment; or was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child; or
(ii) ……

(d) an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another; or
(e) an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee; or
(f) an employee terminated a contract of employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”

36. In Gauteng Provincial Legislature v CCMA and others (JA 87/2020); [2021] ZALAC 57; (2022) 43 ILJ 616 (LAC) the Labour Appeal Court held that there is a fundamental difference between the dismissal postulated in the scenario contemplated in section 186(1)(a) and that envisaged in section 186(1)(b). The former is common where employees are in permanent or indefinite employment, and the latter, as the subsection expressly contemplates, are confined to situations where the employee is employed on a fixed-term basis. The LAC also held that an employee is not employed permanently and on a fixed-term basis at the same time by the same employer. It is either one of the other.
37. The applicant’s case was based on186(1)(a) and (b) of the LRA. When one looks at the wording of section 186(1)(a), this section specifically mentions that the employer terminates the employment of an employee. Dyers informed Willemse that he was not renewing his contract. This was three days before the applicant’s contract was about to expire. The date, 27 June 2025, was on the last day of the term. Following that, it was school holidays. There was thus no further working days between 27 June 2025 and 30 June 2025. I have already determined that Willemse was appointed on a fixed term contract; and his fixed term contract came to an end on 30 June 2025.
38. Section 186(1)(b) refers to an employee employed in terms of a fixed term contract of employment reasonably expecting the employer to renew a fixed term contract of employment or to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract.
39. Willemse testified that he expected to continue working during the succeeding term. He also said that Dyers assured him that he would convert his post from contract to permanent. Subsequently he said that Dyers told him that the post would become permanent and that he assumed that the post would become permanent in the following term. He also said that he accepted the post in good faith, hoping for it to become permanent. Willemse clearly contradicted himself.
40. Willemse also placed emphasis on the form for the Request to Deviate from Using the Excess List to Fill a Substantive Vacant Post. He focused on deletions on the form to support his case that a permanent post was promised to him. The form was completed on 18 and 19 March 2025. This was prior to Dyer’s interview with Willemse. It appears from the details on the form that “a possible candidate” was identified. There was no mention of Willemse’s name on the form, nor a request for him to be converted to a permanent post. It can thus be accepted that a mistake was made on the form when the words “pls convert person” was deleted without any malice.
41. Dyers confirmed that the post would eventually be permanent because it was a permanent vacancy. He denied that he ever told Willemse that he will convert him to permanent. Dyers also testified that a conversion can only take place when a person is in the post for longer than six months. He could not offer anyone a permanent post without it being advertised. He knew Willemse for less than three months and he was governed by directives.
42. In Motlaase v CCMA and others (JR 1802/2017) [2020] ZALCJHB 186 the Commissioner at Arbitration dealt with the test to establish whether a reasonable expectation existed, which is two-fold:
    (a) whether the employee actually expected the contract to be renewed; and
    (b) whether the expectation was reasonable
43. Willemse’s contradictory testimony made him less credible than Dyers. Dyer’s version was more probable than that of Willemse. The post was permanent; and it was said that the post would be converted to a permanent. Although this may have created an expectation for Willemse, such expectation was unreasonable, as it was not promised that Willemse will be appointed permanently. Willemse hoped and believed he would be permanent.
44. Dyers was also required to abide with processes before he could offer anyone a permanent post. As determined, Willemse was aware that he was employed on a three-month fixed term contract. He also knew that an application needed to be made every three months based on the nature of his contract. It was therefore improbable for Willemse to reasonably expect to continue being employed in the post. The post was specialised and had to be advertised. When it was advertised, Willemse never applied for it. It was further improbable for Willemse to have reasonably expected to be permanently appointed in the post.
45. The applicant failed to establish the existence of a dismissal.
    Award
46. The applicant, Mr. Tyrone Willemse, failed to discharge the onus to prove that he was dismissed by the respondent, being the Western Cape Education Department.
47. The applicant’s case is dismissed.

Commissioner Maureen de Beer