---
title: "27 October 2026 – ELRC1228-25/26KZN"
description: "Panellist: Nolundi Shezi Case Number: ELRC1228-25/26KZN Date of Award: 26 October 2026 In the matter between: Siphile Felix Ngcobo and Sizakele Rose-Girl Mbatha Applicant and Department of Higher Education and Training (KZN) Respondent APPLICANTS’ REPRESENTATIVE Mr Richard Donachie, an attorney…"
url: "https://elrc.org.za/docs/27-october-2026-elrc1228-25-26kzn/"
updated: "2026-10-29"
category: AWARDS
---

# 27 October 2026 – ELRC1228-25/26KZN

Panellist: Nolundi Shezi
Case Number: ELRC1228-25/26KZN
Date of Award: 26 October 2026

In the matter between:

Siphile Felix Ngcobo and Sizakele Rose-Girl Mbatha Applicant

and

Department of Higher Education and Training (KZN) Respondent

APPLICANTS’ REPRESENTATIVE Mr Richard Donachie, an attorney from Henwood Britter
Attorneys

FIRST RESPONDENT’S REPRESENTATIVE Ms Andile Mnguni (Durban Bar), instructed by Garlicke
& Bousfield Inc.

Details of Hearing & Representation

1. This dispute, which related to section 191 of the Labour Relations Act No. 66 of 1995, as amended (the LRA), was initially referred to the Commission for Conciliation Mediation and Arbitration (CCMA). The Applicants filed Form 7.11 together with a condonation affidavit. The form 7.11 indicated that the nature of the dispute was a dismissal related to operational requirements (retrenchment).
2. The CCMA commissioner issued a condonation ruling, and condonation was granted. It is important to note that the condonation ruling indicated that the reason for the dismissal related to termination of a fixed-term contract.
3. The CCMA scheduled the matter for a con/arb process; the Respondent objected to the con/arb process. It was conciliated on 07 July 2025. I note the outcome certificate indicated that the Applicants were dismissed for an unknown reason.
4. The CCMA scheduled the matter for arbitration for 27 January 2026; the notice of set down indicated that the nature of dispute related to section 189, that is, dismissal related to operational requirements.
5. One may only conclude that the issue of the Education Labour Relations Council (ELRC) having jurisdiction was only discovered at arbitration level. Hence, a section 147 ruling was issued by the CCMA Durban Senior Commissioner on 28 January 2026. The file was then transferred to the ELRC.
6. The ELRC initially scheduled the matter for arbitration on 25 May 2026; it was part-heard on this date and on 17 and 18 August 2026, then finalized on 07 October 2026. The arbitration proceedings were conducted on MS Teams and were digitally recorded.
7. The Parties had conducted a pre-arbitration meeting and signed pre-arbitration minutes which were received on 25 May 2026.
8. Both Parties agreed to legal representation. The Applicants, Mr S.F. Ngcobo and Mrs S.R. Mbatha, were represented by an attorney, Mr Richard Donachie. The Respondent was represented by Ms Andile Mnguni from the Durban Bar, instructed by Garlicke & Bousfield Inc.
9. Both parties submitted electronic copies of their bundles to the Council in support of their cases, which were also forwarded electronically to the Panellist by the ELRC. The Applicants’ bundle was named bundle “A”, and the Respondent’s bundle was named bundle “B”. The Parties agreed that the copy of Mrs Mbatha’s contract be added to the bundles as exhibit “C” and SADTU Facebook screenshots be added as exhibit “D”.
10. The Respondent called two witnesses, while the Applicants themselves testified and did not call any other witnesses.
11. The parties requested to submit written closing arguments, which request was granted, and the arguments were due on 14 October 2026. It is important to note that only the Applicants’ representative submitted closing arguments; the Respondent failed to submit its closing arguments by the agreed deadline. The ELRC case management officer confirmed that she did not receive them.

Preliminary issues
12. On the first sitting, the Respondent challenged the jurisdiction of the ELRC, stating that the CCMA had no jurisdiction to deal with the matter, that is, to issue the condonation ruling. The Parties were allowed to make oral submissions.
13. The matter was res judicata in as far as the in limine and conciliation processes were concerned; the Respondent had a right to challenge the condonation ruling at the Labour Court. A ruling was issued that the ELRC had jurisdiction to arbitrate the matter.
14. On the second sitting the Respondent filed an application for the admission of an additional document to the bundle, that is, the copy of Mrs Mbatha’s fixed-term contract. The Applicants’ representative did not oppose the application.
15. The copy of the contract was admitted to these proceedings (as agreed by the Parties) as an additional document and labelled as exhibit “C”.
16. Another application was made by the Respondent for the addition of screenshots of SADTU pictures relating to the updates posted on Facebook during the December 2024 meetings with the College management. The Applicant’s representative did not oppose the application. The screenshots were admitted as evidence (as agreed by the Parties), and labelled exhibit “D”.
17. The Panellist disclosed to the Parties that the Respondent’s first witness was her former colleague from the CCMA, who had been a part-time commissioner. The Parties acknowledged and confirmed they had no objection to him continuing to give his evidence.

Issue(s) to be decided (as guided by the Parties’ pre-arbitration minutes)
18. Whether the Applicants were dismissed by the Respondent. The Applicants contend that the Respondent is bound by the service contracts for the 2025 academic year. The Respondent denies being bound by service contracts for 2025.
19. If the dismissal is established, whether the termination of the employment contract was procedurally and substantively fair.

Background
20. The Applicants were employed by the Department of Higher Education and Training (DHET), Elangeni TVET College (Qadi Campus) on a fixed-term contract basis from 2021 until 2024, which was renewed annually. They were employed as lecturers and earned a gross income of R38 088.75 per month. The last salary payment was in January 2025.
21. Whether the Applicants were employed in 2025 remained in dispute. The date they were instructed not to report to work was 24 January 2025.
22. They submitted that they believed that they had been dismissed by the Department and challenged both procedural and substantive fairness of the termination of their employment contract. The Respondent sought a finding that there was no dismissal.
23. The relief sought for each Applicant is compensation equivalent to 11 months’ remuneration being the amount that would have been payable under the balance of the fixed-term contract, which they alleged was unlawfully repudiated.

Survey of Evidence and Argument

The following is a summary of the parties’ testimonies, not verbatim evidence as recordings are available from the Council on request.

Applicants’ case

1. Mr Siphile Felix Ngcobo (referred to as “Mr Ngcobo”) testified under oath that the new contract procedure started with a briefing at the beginning of the year. Before the briefing they would be called to sign the contract.
2. After signing the contract, there would be no further briefing; the lecturers would assist with the registration. It was the campus manager who would tell them if they needed to report to the HR department.
3. The content of the contract was almost the same as previous ones; therefore, he would only check the date and the salary. They would rarely get a copy of the contract after signing it.
4. For the 2025 contracts, they were called back to report to the Central Office between 12 and 14 December 2024; however, they usually signed contracts in January the following year. They were told by the Campus Manager that they would be employed in 2025.
5. When signing the contract in December 2024 they were never told of any condition or anything about union pressure on management. However, it was not the normal procedure to be called to the Central office to sign contracts in December.
6. He signed his contract on 12 December 2024 for a twelve-month period, stating 1 January 2025 until 31 December 2025. He used his phone to take a photo of the contract for his own copy.
7. The beginning-of-the-year briefing would normally cover the budgets; he could not remember any discussion about employment. They continued reporting to the campus as normal up until 24 January 2025 when they were told by the Campus Manager to report to the Central office.
8. The briefing was held on 06 January 2025; their contracts were terminated on 24 January 2025. Two or three days before this date the Head of Department told them to stop lecturing until further notice, as they had already started lecturing the returning students. They were told there was an issue with the loads. He was already approved to lecture at that time.
9. On 24 January 2025, they reported to work and were called by the Campus Manager around 11h00 (started work at 8h00). Upon arriving at the Central Office, there were 11 lecturers from all campuses, but they were called to the office individually.
10. They received termination letters, which stated that they were no longer needed, and they should not report to work on the following Monday. The reason provided was that there were no students and the criteria they used for selection was LIFO.
11. The union advised them not to sign the letters and to continue reporting for work. They reported for one and a half weeks, and their names were removed from the registers. They were paid the full salary in January 2025. They never received any contract after that.
12. During cross-examination Mr Ngcobo stated that the normal procedure was they would receive contracts, and then the briefing would be done in the first week. By that time, they would know who got the contract.
13. He remembered that during the briefing the significant drop in students’ numbers was discussed, and it was reasonable for this to be discussed during the briefing. He understood that this could affect the sharing of workloads and the renewal of contracts.
14. It was true that the College needed to finalize numbers after registration had closed for the confirmation of loads. He conceded that it made sense that loads could be confirmed after registration, but it never happened like that in 2024; they were called before Christmas. Under normal circumstances they would not report for the briefing without signing the contract.
15. In 2025 he started lecturing students before 24 January 2025. The College used the roll-over system and they got registration confirmation. They were told by management to start lecturing. It was the head of department who authorized them to start lecturing; however, he could not remember whether it was verbal or in writing.
16. They continued even when the registration was not yet finalized. It was not always the first week for the signing of contracts and the briefing; it depended on the calendar days. In 2025 the briefing was done on 06 January 2025.
17. Before 14 December 2024 they were instructed to sign 2025 contracts. It was the HR representative who gave them the contracts. When they arrived at the Central office, they were asked to sign the register and contracts. The difference in 2024 was that they were called before Christmas to sign the contracts.
18. It was not true that when signing the contracts HR told them about the bilateral meeting. In December 2024 he was still a SADTU member in good standing, but the union did not communicate anything to them. He only heard about the incident in January 2025, but could not confirm the alleged hostage incident.
19. He conceded that signing contracts in January was a norm. They received notice of termination on 24 January 2025. He understood that his services were no longer needed. He conceded that it was bizarre that they signed a contract on 12 December 2024 then it was terminated within a month.
20. He conceded that based on previous years, the explanation given was not normal. The reason given was that there was not enough load for all lecturers and they had to use LIFO criteria in selecting lecturers.
21. He conceded that the only reason they were given contracts in December could have been that management was under duress as ordinarily the College would not give contracts in December.
22. It was reasonable for the lecturer to know what he would be lecturing and who he would be lecturing the following year. He was not sure whether they started lecturing in the first or second week of January 2025.
23. During the briefing he could not remember the principal talking about plus/minus 17 contracts that would not be renewed. He conceded that he was offered an alternative tutoring programme, which he declined the offer.
24. When asked questions of clarity, Mr Ngcobo stated that he was not aware of the union meeting in December 2024. When receiving his contract in December he did not ask why he received it earlier. After the briefing they would not know about loads or subjects, none were confirmed.
25. The union suggested that they should not sign the letters as they were trying to find a solution. They were 11 lecturers affected; some were absorbed back to the college and others found alternative employment. It was only the two of them, Mrs Mbatha and him, who opened the case.
26. Although they were members of good standing with SADTU, they did not like the way their matter was handled, that is, there was no communication or solution; hence they decided to refer the matter to the CCMA.
27. The second Applicant, Mrs Sizakele Rose-Girl Mbatha (referred to “Mrs Mbatha”) testified under oath that she was appointed by the College as an English lecturer on 15 January 2021. Initially she was placed at the Pinetown campus.
28. On 15 November 2024 she was called by the campus manager to inform her that her contract was coming to an end on 31 December 2024; she was given one month’s notice.
29. Normally they would start working after the schools had opened. After signing the contract they would attend an opening meeting. However, under the NCV programme, they would wait for the students’ results.
30. In 2025 the results came very late, on 20 January 2025; they were at work. She disagreed with management’s version that contracts could not be finalized before registration because they would be at school already. They were required to be at school.
31. It was not determined by the number of students, in January they would not know the number of students. They would normally receive a call in January to sign new contracts, that is, a day before the meeting.
32. In 2024 they were given termination letters on 21 November 2024. They received a call whilst at the marking centre when they received a call concerning the 2025 contracts. When she was contacted nobody mentioned that it was a preliminary arrangement or it was conditional.
33. Immediately when they signed the fixed-term contract, they knew that they were employed for 2025. She was a little surprised and it was strange that the date of signing changed from January to December. She did not question but signed and went to the school at the beginning of the year.
34. When signing the contract, it was the normal procedure of signing the register and then signing the contract. She did not know anything about management being held hostage by the union. She never engaged with the union and the Central office did not say anything.
35. The briefing meeting for 2025 was held online, which was a slight change as they would attend on campuses. She reported for work on 06 January 2025, and she was never told that there was an issue about employment.
36. In January, they were told to meet SADTU on site to sign to receive payment. She went to the bank on 24 January 2025, when she arrived on campus, the campus manager told her that she was called by the Central office. Mr Ngcobo and she arrived at 13h00, there were 11 other lecturers.
37. In the office there were the Department Principal, ER and HR representatives. They were given letters and told that there was a shortage of learners. They were told that 24 January 2025 was the last day and they should not report for work the following Monday.
38. Their normal pay day was the 15th of the month and they were paid full salary for January 2025. She had a 12-month contract and believed she had work.
39. During cross-examination Mrs Mbatha conceded that she understood that her contract was ending in December 2024. She believed she was an employee because she had a fixed-term contract. She conceded that she was a member of the union SADTU.
40. On 12 December 2024 she was given a contract for 2025 which had the start date of 01 January 2025 and 31 December 2025.
41. She did not know about the bilateral meeting between the union and management, as a member would not necessarily know about union programmes. However, she knew about a different meeting held on 8 December 2024 and could have been aware of it beforehand, as she was one of the items on the agenda. She did not notice any hostility, tension or unusual atmosphere during the meeting. SADTU never reported to them anything about the reduction of staff.
42. She conceded that the contract presented as evidence in these proceedings was her contract. She remembered signing the contract and confirmed the signature was hers. She also conceded that the contract did not have the principal’s signature.
43. Mrs Mbatha conceded that she never received a signed copy from the College and confirmed that the contract presented as evidence was for 2025. The contract had the same terms and conditions as the 2024 academic year contract and she had got it in January 2024.
44. She conceded that the methodology used in December 2024 was strange and it was unreasonable for any change without giving any explanation. She was called by the campus manager to report to the Central office.
45. She conceded that the College or any other tertiary institution required sufficient student demand or enrolment before confirming lecturers. They needed to know the numbers, but they were not provided with any explanation.
46. All fixed-term contract lecturers were affected but they were not told about the condition. She never heard concessions by the union. She did not know that the lecturer allocation was finalized on 23 January 2025.
47. She conceded that policy stated that the duty load had to be determined and for the lecturers to be required there should be sufficient students in the class. Without enough numbers they could not appoint temporary lecturers, and she understood this in terms of the policy.
48. Normally the duty load would be determined roughly two weeks before the students started. She believed that she could have been allocated the duty load because she had signed the contract.
49. She conceded that another consideration was that the load had to be first spread among full-time lecturers and whether all students had returned. She was not aware of the alleged drastic reduction in the budget.
50. She submitted that she did not know that the reason she was not represented by SADTU at these proceedings was because it knew about the due diligence that was required.
51. On 28 January 2025 their names were removed from the list and they were told that the College was going to call the police. As professionals, that was when they decided not to use SADTU, hence they got legal advice.
52. They did not have any problem with SADTU. They took the legal route because both Applicants were concerned that they might lose the case if they used the union, as they were not confident of a favourable outcome. She disagreed that the reason SADTU was not part of these proceedings was because their case had no merit.
53. She conceded that other lecturers did not bring any proceedings against the Employer. She was not going to give the names of the lecturers called back by the Respondent.
54. She conceded that the reason she could not be contracted was because there were not enough students, but she had signed the contract. Furthermore, the contracts were given in December 2024 because the union had agreed to the condition.
55. She conceded that she could not expect the new contract without the students being available and she could not say that she had a contract without confirmed student numbers. The duty load was finalized on 23 January 2025.
56. She conceded that she would not have an expectation of the new employment until she signed the contract; however, she signed the contract for 12 months. Her understanding of signing the contract was that she was back to work for the whole year. Her contract took three weeks without the Respondent’s signature. She was maintaining her position that nobody explained anything to them.
57. She was offered alternative work and was told about the possibility of work but she was confused. She did not take the offer. The LIFO criteria used was explained to her.
58. She understood that she could have asked for a copy of the contract signed by all parties in previous years and conceded that there had been no refusal; she simply had not asked for it. It always happened like that; they would sign and go.
59. When asked questions of clarity Mrs Mbatha conceded that they normally signed renewed contracts in January and all procedures would be done in January. It was the first time in 2024 that they signed the contract in December for 2025.
60. She stated that she was excited about the contract and did not ask anything but conceded this was not normal. She also conceded that the contract she signed in December 2024 was not signed by the College and she did not enquire about the copy signed by the College. They would normally sign and go. There were two lecturers that were employed by other colleges.
61. She conceded that she never received any contract signed by the College, that her contract did not have two signatures and that she understood why the contract needed to have two signatures.

Respondent’s case
85. The Respondent’s first witness, Mr Nkosinathi Mkhize (referred to as “Mr Mkhize”), testified under oath that he was employed by the Respondent as Assistant Director, Human Resources Development and Training (HRMD). He had worked for the Respondent since 01 November 2020, and was appointed to the current position in April 2022.
86. He stated that the normal process for ending contracts for the National Certificate Vocational (NCV) lecturers, whose contracts were for a duration of 12 months ending on 31 December, the College would issue a reminder to the lecturers in November.
87. For this case the notices were issued in November 2024, and both Applicants were issued with the notice letters which were normally issued by the Campus manager who would send acknowledgments to HR.
88. Before the letters were issued, they had a bilateral meeting with the union SADTU in September 2024. The non-renewal of fixed-term contracts for 2025 was one of the issues discussed. SADTU was pushing for a five-year period instead of one year; they told them it was not possible as it depended on the availability of students.
89. They had meetings on 03 and 09 December 2024, the one on the 9th December was concluded the following day, 10 December 2024. Among the issues discussed was the Post Provision Norm (PPN).
90. He submitted that on the 9th of December 2024 they started a bit late, at midday; they continued with the issues. The main issue was the termination of the contractsed lecturers and subsequent renewal for 2025 considering the PPN issues.
91. The reason the above issue was on the agenda was because contracts were coming to an end and that they would need the results to be finalized before issuing 2025 contracts.
92. On the said day managers wanted to leave in the afternoon but only one manager was released because she was not well. The meeting continued till 8h30 the following day. Whilst they were still on the premises the other staff members arrived in the morning of 10 December 2024 and found them there still wearing the same clothes.
93. SADTU wanted the contracts for 2025 to be issued in 2024. The normal procedure would first involve confirming the student numbers and then appointing lecturers depending on the funding. Once the registration was finalized, they would then confirm the required number of lecturers.
94. Some of the SADTU people who attended that meeting were not from from the College. Some were under the influence of alcohol and they felt threatened in their capacity as management.
95. The meeting ended by the College committing that lecturers would sign the contracts in 2024; however, the principal signing of contracts would depend on the duty load which was going to be determined by due diligence. The reason they agreed was that they were held against their will.
96. The duty load requirement was that every lecturer should have 30 students, but this was reduced to 25 students per lecturer or, alternatively, the lecturer was required to work 25 hours per week.
97. Mrs Mbatha was present on 09 December 2024 but for another issue related to her specifically. The consolidated list for all college lecturers on fixed-term contracts was 77 lecturers. The College was closing on 13 December 2024.
98. The lecturers had to come to the Central Office, where they signed the attendance register at the front desk. The other issue raised by the union was that HR was not giving them copies of the contracts; they then agreed that they would be given copies.
99. Mr Mkhize confirmed that he was at the premises when the lecturers came to sign the contracts. They gave an explanation to all lecturers, and all the SADTU members signed. The Applicants came a bit late, but they were also provided with an explanation. His understanding was that they were happy for signing the contracts.
100. SADTU kept their members updated about the progress of the meetings through Facebook posts (screenshots of the photographs were shared during these proceedings). When reading the posts, one written message stated that management had been made to sleep at the office.
101. He submitted that the Facebook posts limited management’s ability to issue any communication. The union told them that they had exclusive rights to communicate with their members.
102. The College re-opened on 06 January 2025, the principal presented her statement of address to all employees across campuses, which was done virtually.
103. The contracts were concluded in December 2024 due to pressure from the union. In the previous years, they would be issued in January after registration and after the students who had passed were identified.
104. In 2025 the registration was finalized mid-January. The Academic Services confirmed the names of the lecturers who were to be called. Because the lecturers signed the contract in December 2024, in January they reported for duty but did not perform any work.
105. The results were delayed, lectures only started on 27 January 2025. The duty load was to determine whether the lecturer was going to be able to work 25 hours per week and they also considered areas of specialization.
106. The duty load meeting would be chaired by the principal, also attended by the deputy principals and campus managers, and assisted by the Assistant Director HRDT (ER Manager). The final process would be completed in January. For 2025 the duty load was finalized on 23 January 2025, and 11 lecturers did not have duty loads. They called all of them on 24 January 2025.
107. For the Applicants, Mr Ngcobo competed with another lecturer from Mpumalanga, Mthembu, who also had done a Trade Test for occupational programmes. Mthembu was transferred to the Qadi campus.
108. They gave an explanation to each lecturer in person, some accepted the explanation, while others did not accept the explanation. He was part of the team that explained to the Applicants. The termination letters were given to them one by one.
109. There was an opportunity for the lecturers to file applications for the EAPRO, for which applications were already closed but they had extended the deadline for the affected lecturers, and they were told that their application would be prioritized. They were trying to assist them as much as they could. They were offered alternative employment.
110. They decided to pay them for January even though they were not in class, and they were paid full salary.
111. During cross-examination Mr Mkhize stated that it was true that the Applicants were called to sign the contracts and they explained the terms. He could not dispute what happened in the previous years but all appointments depended on the duty load.
112. The Applicants’ version that they did not need to wait for registrations previously was only possible when the relevant programme still had N1-N3 but with the latest transition that was not possible.
113. In 2025 management needed to confirm first if they had work for them but they were in possession of the contracts because of their union. The contracts were given in December 2024 subject to the principal’s signature and approval of the workload.
114. SADTU members were bound by their union, however, there was no written agreement between SADTU and management for December 2024. No formal minutes were taken; they were taking their own notes. The union and Qadi Campus management were supposed to report to the lecturers.
115. The contracts were explained to the lecturers when they came to sign, which is the reason why only the Applicants challenged the decision; neither did the union challenge the decision.
116. In January they instructed the campuses that the lecturers should not do any work until the principal had signed the contract. It would not be proper to tell them not to come to work until the final decision was taken, hence they were asked to sign the register when reporting to work. They were paid because it was not their fault that the duty load was not confirmed early in January 2025.
117. After the explanation, the Applicants signed the contract agreeing that they understood what was explained to them. It is true that the condition was not written on the contract they signed as it was the standard contract used; all explanations were done verbally.
118. They explained to them that the principal was still to conduct the due diligence and they understood the workload. On 24 January 2025 it was explained to them that the decision was in line with what was agreed upon with the union in December 2024.
119. The Applicants knew that their contracts had to be signed by both parties. It was not true that the affected lecturers were employed until 24 January 2025 as their appointments depended on the duty load. They were paid because they were told to come to work until the final decision was taken. They were going to be confirmed as employees once the principal had completed the due diligence and they had been accommodated within the duty load.
120. Because they were paid in full for January 2025 the notice was not required. The conclusion of the employment agreement was based on the outcome of the duty load.
121. He believed their contracts were terminated for a fair reason and in accordance with a fair procedure. The Applicants did not sign the termination letters and said the union told them not to sign.
122. The retrenchment criteria were not applicable as this was not a retrenchment process but a contracting process based on the duty load. There was no concluded contract between them and the College.
123. An inference should be drawn from the fact that all contracts were normally signed in January; however, they received contracts in December 2024 due to the threats made by the union to management.
124. When asked questions of clarity Mr Mkhize stated that management was held hostage by SADTU, nobody was allowed to leave except the person who was not well.
125. The contract was not issued under duress. However, the principal felt bad that people were held hostage throughout the night. Hence, she agreed to issue the contracts but mentioned that she would only sign them once she had conducted the due diligence.
126. He conceded that there was an employment relationship in January 2025, but it was conditional. The employees were aware of the conditional issue as was explained to them when they came to sign the contracts. He was the one who provided the explanation.
127. The due diligence was completed on 23 January 2025, and some lecturers did not have a workload. They were issued with the letters on 24 January 2025, but SADTU members refused to sign the letters.
128. The Applicants attended the principal’s state of address. They were the only ones who challenged the College decision; the other lecturers did not challenge it.

1. The Respondent’s second witness, Ms Ignatia Thobeka Dlungwana (referred to as “Ms Dlungwana”) testified under oath that she is employed by the Respondent as Campus Manager for Qadi Campus.
2. She submitted that she was not involved in the process of drafting contracts but was involved in the duty-load determination process, however, determining how many lecturers would be required was the function of the Committee.
3. The duty load meant the lecturing work of the campus, determined by the number of students’ groups and allocated subjects. The Campus Management Committee or CMT look at the numbers of class groups and make projections. They would draft the allocations of groups and the required lecturers.
4. They would consider both full-time and part-time lecturers. If lecturers did not have duty loads in that particular campus they would be moved to another campus. The draft would be done in November.
5. Ordinarily the contracts would be given to the lecturers in January, however, for 2025 they were handed over in December 2024 before the end of the year. The normal procedure was not followed.
6. The reason they were issued in December 2024 resulted from the management meeting held with SADTU, which was a demand by the union. Two meetings were held in December 2024, and the main issues were contract renewals and staff benefits. SADTU wanted the contracts to be issued before the College closed, and said they wanted their members to have a pleasant Christmas.
7. The funding from the Department of Education and Training was reduced; therefore, the College could not sustain the large number of students as the costs would be much higher. The impact of this was that there was a possibility of them losing 19 lecturers.
8. She was present at the meetings with SADTU and the contracts that were issued were a result of the meetings they held with SADTU. The College agreed but specified that the due diligence was still going to be done when receiving the students’ results.
9. SADTU was not requesting the College to issue contracts in December 2024, but it was demanding that the contracts be issued and the tone and mood was hostile, it was not a nice meeting hence the College had to give in and issue the contracts.
10. The meeting started with management and SADTU Regional Official and General Secretary but as it continued more SADTU members were joining the meeting. They started singing and intimidating management, the meeting ended with approximately 50 members.
11. The normal bilateral meeting would have consisted of the College branch representatives and two SADTU regional officials. She believed the additional people were called to intimidate management. External people joined the meeting, it did not look like a professional meeting, and how they spoke to them was also hostile.
12. She had requested to be released at 16h00 but decided to stay as she was not sure how her colleagues would be treated after she had left.
13. The agreement with the union was that the contracts would be issued as demanded; however, the duty load was still going to be done in January. The final draft of the projections would be done after receiving the students’ results.
14. The due diligence would determine the College’s need, and the permanent lecturers would be given priority. The due diligence for the Qadi Campus was that there were five lecturers without the load, and other campuses also experienced the same where there were lecturers without the load.
15. For part-time lecturers they used the LIFO criteria and also considered the qualifications. There was a decrease of 800 students, and 11 lecturers did not have a workload.
16. Mr Ngcobo was from the Electrical Engineering department. They required one group, which was allocated to him. However, the College determined that there was another lecturer for the same work. Due to the QCTO requirement, Occupational Engineering required a lecturer with the Trade Test. The workload was given to the other lecturer with the Trade Test, and he did not have it.
17. In relation to Mrs Mbatha’s case, she taught English for the Vocational Certificate across all programs. The projection was for 25 groups, but the actual total comprised 20 groups, that is, the actuals did not match the projections.
18. They always prioritized full-time lecturers; they ended up not having a load for 25 hours for the full-time lecturers. There were four lecturers for English, three had English only and one had another course to lecture in addition to English. Two of the four English lecturers were full-time, and two part-time.
19. They used the employment start date to make a determination between the two part-time lecturers, Mrs Mbatha joined the College later than the other lecturer. Therefore, her work was split up to top up the required loads for the other lecturers.
20. She believed SADTU communicated with their members as there were posts on Facebook. When the lecturers were completing forms, they needed their start dates as SADTU knew that they would use LIFO in determining who got the workload, as it was expected that not all contracts would be renewed.
21. The agreement with SADTU was that the due diligence would still be conducted. The Applicants were not accommodated as they did not have loads.
22. The PERM document was designed working together with the unions to determine the total number of students per lecturer, which was 20 to 22, and they also agreed to 25 hours per week. SADTU knew in 2024 that the numbers would drop.
23. The students’ results became available around 20 January 2025, and the due diligence was completed on 23 January 2025.
24. During the principal’s state of address, she spoke about the drop in student numbers, and its impact on the renewal of contracts. When they returned in January 2025 there were no lectures except outstanding administration work. There were some lecturers who were part of the registration committee.
25. The selection criteria was discussed at the meeting held on 23 January 2025. Both English and engineering departments had limited loads.
26. During cross-examination Ms Dlungwana stated that the input for the duty loads would come from the campus, however, consideration of the qualifications and other specifications would be done by the committee. The allocations would be done by the Strategy Projection Committee. The consolidations would be determined by the actual numbers.
27. The contracts issued were based on the projected numbers. It was correct that what happened in December 2024 for 2025 was different from the other previous years. The union wanted the contracts to be issued in December 2024 instead of January 2025.
28. Running of small class numbers was disapproved by the Department of Higher Education and Training. The decline in student numbers was considered for projections. However, in 2025 the actual numbers and consolidations affected the number of lecturers, at Qadi campus two were affected.
29. For the engineering department they projected 16 students progressing, but only 14 progressed. This was not viable, one class had to be dissolved and students were moved to another campus.
30. She conceded that in January 2025 the lecturers were employees as they needed to report for duty. They were employees except being surplus and their employment was brought to an end because they were surplus.
31. Due to operational requirements LIFO was applied. The consultation process was followed as they were told to go to the Central office for a meeting. It was correct that the decision was taken at the meeting for them to leave.
32. There was no meeting with them and the union prior, as they did not know they would not have a load, neither did they know the situation in other campuses. It was the HR function to conduct the consultation process.
33. Mr Ngcobo initially had a load however, the Committee gave it to the other lecturer who had a Trade Test, as any lecturer teaching Engineering needed to have the Trade Test. It was true that the Applicants were not engaged before the decision was taken.
34. The reason they gave in to union pressure was that, if there was no agreement and the contracts were not issued as demanded, SADTU would demand another meeting with management. Management was concerned about being held hostage again.
35. The reason for their termination was because the actuals were not in line with the projections, non-viable classes had to be discontinued. It was correct that their termination was based on operational requirements.
36. When asked questions of clarity Ms Dlungwana stated that the issue of the reduction of student numbers was discussed during the strategy meeting, the College invited the unions, including SADTU.
37. The reason they complied with SADTU’s demand was because there was a tentative date for another meeting and because of what management went through being held through the night. If the College did not comply, they were going to have another meeting. The contracts were not issued under duress but because of the demand made by SADTU.
38. She could not tell if Mr Ngcobo was aware or not of the Trade Test requirement. It was correct that not all lecturers were issued with contracts in December 2024. She could not say if lecturers were aware of the outstanding due diligence but believed there was a termination clause on their contracts.
39. She conceded that the Applicants were employees in January 2025, hence their contracts had to be terminated. She further conceded that the reason for termination was based on operational requirements.

Closing arguments

1. The following is a summary of the Applicants’ closing arguments as submitted by their legal representative:
2. Mr Donachie argued that the Applicants would be contacted by the campus manager to advise that they should go to the central office to sign their employment contract for that year. At no stage would they receive a contract signed on behalf of the Respondent even in the previous years.
3. They were at the marking Centre on 12 December 2024; they were contacted by the campus manager to advise that they should go to the central office to sign their contracts for the following year. They were not told why this was taking place in December, as opposed to January.
4. They testified that no one indicated to them that there were any formalities that needed to be addressed before a binding agreement came into existence. Both of the Applicants denied that they were aware of any engagements with the union and what may have taken place. There was nothing improbable in their version.
5. The Applicants were paid their salaries as usual in January, but before any lectures could start, they were instructed to report to the regional office, where they were handed correspondence advising that the Respondent had decided, after finalizing student registration, that their services were not required for the 2025 academic year. They were instructed not to come to work from 27 January 2025.
6. A contention on the part of the Respondent that there was no employment contract, as it had not been signed on behalf of the Respondent, could be met by the defence that the Respondent is stopped from denying that an employment relationship came into existence. Alternatively, the facts would support the existence of a tacit agreement by virtue of the conduct of the Respondent in accepting the services of the Applicants, at the beginning of January, coupled with the fact that salaries were paid in January 2025.
7. The Respondent’s first witness when asked questions of clarity conceded that the Applicants had been employed by the Respondent during January 2025. He answered in the affirmative, although he endeavoured to suggest that the employment was “conditional”. It could not have been a suspensive condition because the employment relationship had actually commenced.
8. The second witness for the Respondent also confirmed that the Applicants had been employed and that their services were terminated by virtue of an application of a selection process, based both on LIFO and the need to retain specific skills. It was effectively conceded that there was a termination of employment for operational reasons. She suggested that there was a term inserted in the employment contract making the Applicants aware of the fact that after lecture loads had finally been determined, their services may no longer be required. There was clearly no such term in the employment contract signed by the Applicants.
9. The Applicants have established that they were employed by the Respondent. That employment could only have arisen in terms of the written employment contract. There is no evidence of any other offer of employment having been made to the Applicants. What is also evident is that the employment relationship was terminated by the Respondent. There was no termination at the instance by the Applicants.
10. Regarding whether the termination was procedurally and substantively fair, he argued that the Respondent placed no evidence of substance before the Commissioner in relation to the decision taken to terminate the employment, other than to contend that it was operationally required, due to there being an excess of lecturing staff, having regard to lecture loads determined after registration had been finalized.
11. The Respondent furthermore contends, with a vague reference to LIFO and skills retention, for a fair selection process. In both respects, the Respondent relies only upon its own ipse dixit, with no evidence having been placed before the Commissioner to substantiate its contentions.
12. The Respondent had the onus to establish substantive fairness. In relation to fixed-term contracts, the general position is that a party is not permitted to prematurely terminate the contract except where one of the parties commits a material breach of such agreement.
13. An exception arises where the terms of the contract provide for early termination, where the employment contract may be regarded as a hybrid agreement, being fixed-term but with it being open to one or both parties to terminate earlier. However, it is a matter of interpretation as to whether the agreement was intended by the parties to be a hybrid agreement.
14. Regarding clause 2.1 of the agreement, it categorically states that the agreement is to commence on 1 January 2025 and is to continue up to and including 31 December 2025. Whilst clause 3.3 of the agreement makes provision for termination on notice, it is submitted that the termination had to be for reasons justified in law. It is a trite provision of the LRA that a termination of employment must be for a fair reason.
15. The Respondent placed nothing before this Council to substantiate a contention that there was insufficient lecture load, that it was not possible to place the Applicants elsewhere. Furthermore, no evidence was placed before the Commissioner as to the alternatives considered, the possibility of alternative employment or the manner in which the selection criteria had been applied. There is a broad reference to the application of LIFO, but in relation to the first Applicant this was not the criterion utilized. It was simply indicated that it was not used because there was a need for skills retention, as the person who was retained had a trade test qualification.
16. The Applicants were never given an opportunity to deal with that evidence, and accordingly, there is no basis upon which the Respondent can contend that they have established that the termination of services for operational reasons was substantively fair. No concrete evidence was placed before the Commissioner in that regard.
17. The second witness for the Respondent appeared to recognize in her evidence that in relation to the issue of the condition there was a need to specifically draw this to the attention of the employees in the contract of employment.
18. On the issue of procedural fairness, there is no basis upon which the Respondent can contend that the dismissal took place in accordance with a fair procedure. If regard is had to the provisions of section 189, there was no semblance of compliance with the requirements of the LRA.
19. In the termination of the Applicants’ services, there was no form of consultation in a joint consensus-seeking process to attempt to reach agreement relating to appropriate measures to avoid or minimize the dismissals, the method of selecting employees to be dismissed and/or any discussions relating to severance pay. There was no engagement with the unions relating to a termination for operational reasons and no attempt at engagement with the Applicants prior to any decision being taken in relation to the termination of services.
20. The Applicants were presented with a fait accompli that they were no longer employed. The actions of the Respondent showed a crass disregard for the rights of the Applicants.
21. In the totality of all of the circumstances, it is respectfully submitted that not only were the dismissals of the Applicants substantively unfair, but those dismissals were also procedurally unfair.
22. Mr Donachie further argued that the manner in which the termination took place is deserving of censure and the highest award of compensation, which, it was submitted, should consist of the balance of the remuneration that they would have received under the fixed-term contract, equivalent to 11 months' compensation, amounting in total to an amount of R418 976.18 for each Applicant.

Analysis of Evidence:
190. Section 192(1) of the LRA requires the employee to establish the existence of dismissal. Section 192(2) states if the existence of dismissal is established, the employer must prove that the dismissal is fair.
191. I have also taken into account Item 4 and Item 7 of the Code of Good Practice of Schedule 8 of the LRA.
192. It is important to note that according to paragraph 3.1. of the Parties’ signed pre-arbitration minutes the issue of whether the Applicants were employed by the Respondent or not was not among the issues that were in dispute. Paragraph 3.1 of the pre-arbitration minutes began with the question of whether the Applicants were dismissed.
193. As indicated under paragraph 1 above, the initial referral form made reference to the reason for termination related to operational requirements (retrenchment). There is no clear reason why the conciliating commissioner indicated on the outcome certificate that the dismissal was for an unknown reason.
194. Paragraph 3.2 of the Parties’ pre-arbitration minutes made reference to the termination of the employment contract. It is not clear if the two representatives were aware that the initial referral form indicated that the reason for termination was written as dismissal related to operational requirements (retrenchment). However, the Parties are bound by their pre-arbitration minutes.
195. It is common cause that the Applicants were issued with fixed-term contracts on 12 December 2024. It is the Parties’ evidence that the new contracts would be issued in January, therefore, the issuing of contracts in December 2024 was unprecedented.
196. The Respondent’s first witness, Mr Mkhize, testified that the contracts were issued under duress as management was held hostage overnight. SADTU’s Facebook post screenshots were presented as evidence during these proceedings.
197. The Respondent’s second witness, Ms Dlungwana, testified that the contracts were not issued under duress but because of the SADTU’s demand. She further testified that there was an agreement between SADTU and management that the contracts would be issued but subject to the principal concluding the due diligence in relation to the duty load.
198. The Parties agreed that the copy of Mrs Mbatha’s fixed-term contract (referred to “the Contract”), labelled as “Annexure C” be admitted to these proceedings as additional documentary evidence.
199. I would like to highlight the following clause of this Contract for the purpose of these proceedings:
Last part of clause 3.1 – “…unless such renewal or further employment is reduced to writing and signed by both parties.”
200. Clause 3.1 of the Contract refers to renewal or further employment being reduced to writing and signed by both parties. It is common cause that the Contract was only signed by the lecturers but not signed by the Respondent.
201. The validity of the contract came into question because the absence of the principal’s signature, as the budget controller and the Respondent’s representative in this mutual agreement, raised the question of whether consensus ad idem—a meeting of minds—existed between the parties. That is, was there a shared understanding between all parties regarding the essential terms, conditions and subject matter of this contract.
202. One may therefore conclude that the absence of the principal’s signature on the given contracts supports the Respondent’s evidence that the agreement was that signed contracts would be issued once the due diligence and duty load exercise was completed.
203. Generally, disputes involving unsigned fixed-term contracts pivot on whether a valid fixed-term agreement existed or if the relationship defaulted to an indefinite (permanent) contract by law or conduct.
204. In the case of Takenote Trading (Pty) Ltd v CCMA & Others (2024) the Labour Court reinforced the importance of properly documenting and signing a compliant fixed-term contract.
205. It is common cause that the Applicants were employed in January 2025. The question was whether that employment was governed by the unsigned contract. It is not in dispute that they were required to report to work, signed the register during the month of January 2025, and they were paid for that month. Therefore, the termination letters issued on 24 January 2025 terminated the employment relationship; they were dismissed by the Respondent.
206. Procedural and substantive fairness must be considered when a fixed-term contract is terminated prematurely, converted by operation of law or challenged upon non-renewal.
207. The Respondent must possess a fair reason (such as misconduct, incapacity or operational requirements) and follow a fair procedural inquiry (such as a disciplinary hearing or consultation process) equivalent to standard employment.
208. I believe the principle adopted in Umlalazi Municipality v Mucoque and Others ([2022] ZALCD 49) is also applicable in this matter even though the nature of the dispute for this judgment related to section 198B(3) of the LRA. The Labour Court held that terminating the employee without following a procedure and substantive justification constituted an unfair dismissal.
209. Whether the Applicants were informed about the alleged agreement between the union and management remained in dispute. It was Mr Mkhize’s testimony that he informed the lecturers himself when they came to sign the contract. The Applicants denied any information related to this issue.
210. I note the principle of “he who alleges must prove” is applicable. However, one may not ignore the fact that out of 11 lecturers terminated on 24 January 2025, it was only the two Applicants from Qadi Campus who stated that they had not been informed. One may therefore conclude that all lecturers were informed; hence the other nine terminated did not challenge the College’s decision.
211. Furthermore, it is the Applicants’ testimony that they were told by the union not to sign the letters issued to them on 24 January 2025. They testified that they were members in good standing with SADTU. One may conclude again that the reason SADTU was not available to assist them when they referred the matter could be that the union was aware of what they agreed upon with management.
212. I found it strange that the Applicants would receive contracts in December for the first time but not enquire about the reason. Mrs Mbatha was also on the agenda during the meeting held between SADTU and the College management. Therefore, it is highly improbable that she would not be aware why the contracts were issued during the unprecedented time.
213. There is no evidence presented in these proceedings that SADTU called another meeting with management challenging the issue that the lecturers were issued with contracts that were not signed by the principal. The Applicants were members in good standing; therefore, the union acted on their behalf. I have also considered all their concessions during these proceedings.
214. I have accepted the Respondent’s version that the contracts received on 12 December 2024, which were unprecedented, were conditional upon the principal conducting due diligence and confirming the duty loads before 2025 contracts were confirmed. Therefore, I conclude that the Respondent was not bound by the service contracts for the 2025 academic year. I find the dismissal of the Applicants to be substantively fair.
215. I believe even though the union and management had agreed to the due diligence being conducted and duty loads confirmed, the College still had the responsibility of consulting with the union and/or affected lecturers prior to the termination of the contracts. The criteria used in deciding which lecturers would not receive contracts signed by the principal needed to be communicated with the lecturers and they also needed to be invited to make presentations in relation to the available alternatives.
216. Since they were expected to report for duty and signed the attendance register in January 2025; they were supposed to be given notices. I believe the Respondent did not follow proper procedures prior to terminating their employment in January 2025. Therefore, I find the dismissal of the Applicants to be procedurally unfair.
217. The remedies that may be afforded to the Applicants are set out in section 193 of the LRA. The Applicants indicated that they sought compensation as relief for their dismissal.
218. Section 194 of the LRA provides limits on compensation and that it must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.
219. Accordingly, I have considered the following:
• The facts, evidence and my finding on the unfairness of the dismissal.
• That the 2024 contract had already been terminated on 31 December 2024; the Applicants only worked one month in 2025.
• The dismissal was only procedurally unfair.
220. I determine that compensation equivalent to two months’ remuneration plus one week’s notice pay for each Applicant is just and equitable in this instance.
221. Each Applicant is awarded compensation as follows: Monthly salary of R38 088.75 multiplied by two equals R76 177.50.
222. One week’s notice pay: R38 088.75 divided by 4.333 equals a weekly pay of R8 790.39.
223. The total amount awarded to each Applicant is R84 967.89 (R76 177.50 + R8 790.39).
Award
224. The dismissal of the Applicants is procedurally unfair and substantively fair.
225. The Respondent, Department of Higher Education and Training, is ordered to pay each Applicant, Mr Siphile Felix Ngcobo and Mrs Sizakele Rose-Girl Mbatha, an amount of eighty-four thousand nine hundred and sixty-seven rand eighty-nine cents (R84 967.89) only.
226. The amount stated in paragraph 225 is subject to tax and payable by no later than 30 November 2026.
227. There is no order as to costs.

DATED 26 October 2026

Commissioner Nolundi Shezi