Case Number: ELRC1356-24/25NW
Panelist: Thobela Obey Mqamelo
Date of Award: 29 August 2025

In the Arbitration between

Abram Mabaakanye
(Applicant / Union)

And

North West Department of Education
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. This unfair dismissal dispute was arbitrated through online platform Microsoft Teams on 04 June 2025, and on 30 July 2025. The Education Labour Relations Council hosted the proceedings.
2. The applicant, Abram Mabaakanye (herewith referred to as ‘’applicant’’) was present on all the days and was represented by Mr Forever Marema (Mr Marema) from Marema F. Attorneys.
3. The respondent, North West Department of Education (herewith referred to as ‘’respondent’’) was represented by Tatedi Motshaba (Mr Motshaba), the Labour Relations Manager of the respondent.
4. It is worth mentioning that legal representation was granted by me on consideration oral submissions and opposing submissions made by Mr Marema and Mr Motshaba on record for an application for condonation of the late filing of the application for legal representation and application for legal representation, and on conclusion that it would be unreasonable to expect a party (in this matter the applicant) the deal with the matter without legal representation. An Ex-Tempore ruling was issued in that regard. For purpose of this arbitration award, I will not dwell on submissions for legal representation.
5. Parties filed their Pre-Arbitration minutes.
6. Parties submitted their opening statements orally.
7. Parties submitted their bundle of documents, and were marked (applicants bundle – EE1 consisting of one page, and the respondent’s bundle- R1 consisting of 27 pages).
8. Mr Abram Mabaakanye and Mr Patric Sibaeng testified during the proceedings.
9. Evidence was tendered under Oath.
10. The proceedings are manually and digitally recorded
11. Both parties agreed to file their closing arguments in writing by no later than 06 August 2025, and both parties complied.

COMMON CAUSE FACTORS

12. In terms of the Pre-Arbitration minutes, the following are common cause matters.

• The applicant commenced employment with the respondent as an Educator on a Post Level 1 Fixed Term contract position on 01 September 2020 and was placed at Sewagodimo Technical High School in the Bojanala District.

• He earned a basic salary amount of R20,407.00 per month.

MATTERS IN DISPUTE

13. In terms of the Pre-Arbitration minutes, the following are matters in dispute.

• The existence of the dismissal is in dispute.

• Whether or not the conversion of the applicant’s employment from a fixed term contract to permanent employment was withdrawn by the respondent.

• Whether the applicant was informed of the withdrawal of the conversion of his employment contract.

• Whether or not the applicant was under-qualified to be converted to Educator on permanent employment by the respondent.

• Whether or not the applicant had the Postgraduate Certificate in Education from a registered Institution of Higher Education as a requirement in terms of Employment of Educators Act, and other Employment policies, and legislation.

• Whether or not the applicant was supposed to have been converted to a permanent employment in terms of Collective Agreement 4 of 2018.

• Whether or not the applicant was employed on fixed term contract.

• Whether the applicant was granted enough time to complete the Postgraduate Certificate in Education.

• he nature of the applicant’s employment relationship with the respondent as at the time of termination of employment will be challenged by the applicant.

• The date of termination of the employment of the applicant to be determined on evidence (the applicant submitted it was on 13 December 2024, and the respondent submitted it was on 31 December 2024).

ISSUE TO BE DECIDED

14. I must determine whether or not the applicant was dismissed by the respondent, and if so whether or not the dismissal is fair.
15. The applicant is challenging both the procedural and substantive fairness of the dismissal.
16. The applicant seeks retrospective reinstatement.

SURVEY OF EVIDENCE AND ARGUMENT

17. This is a brief summary and evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand.

APPLICANTS CASE
ABRAM MABAKAANYE

18. The applicant testified that he commenced employment with the respondent on 01 September 2020., and that was employed on fixed term contracts and placed at Sewagodimo Technical High School as from 01 September until 31 December 2020, 01 January 2021 until 31 December 2021, from 01 January 2022 until 31 December 2022, 01 January 2023 until 31 December 2023.
19. It is the applicant’s testimony that on 01 July 2023 he was converted from a fixed term contract of employment, and he became a permanent employee of the respondent, he referred to page 4 of the respondent bundle. He was dismissed on 13 December 2024 when he was informed by Mr Sibaeng, the Principal that to him that his contract of employment will terminate on 31 December 2024. There was no reason for there was no reason for the withdrawal of this permanent employment by the respondent, and that he was never informed that his conversion to a permanent status has been withdrawn by the respondent.
20. The applicant is challenging substantive fairness of his dismissal in that he was dismissed unfairly by the respondent in that respondent did not have fair reason to dismiss him as he was a permanent employee of the respondent and was no longer on a fixed term contract at the time the he was informed that his employment was to terminate. He was in possession of a SACE Certificate which reflect that he can only teach at a TVET College and a Diploma in Business Management; he only registered his studies for Postgraduate Certificate and he did not complete. It is his testimony that he was not given enough time to complete it and that he was not told by the respondent when he must complete the Postgraduate Certificate in Education at the time when he was being employed.
21. The applicant is also challenging procedural fairness of his dismissal in the respondent did not give him an opportunity to be heard and that the respondent did not follow a fair procedure.
22. The applicant seeks retrospective reinstatement.

RESPONDENTS CASE
PATRIC SEBAENG

23. He testified that he is currently employed as the Principal at Sewagodimo Technical High School in the North West Province. His responsibilities as Principal includes school management and all duties of an educator.
    .
24. He testified that he knows the applicant, and that the applicant employed on fixed term contracts as an educator since 01 September 2020.According to Mr Sebaen, the applicant indicated that he was registered to study a Postgraduate Certificate is Education.
25. On 09 December 2024 there was a meeting at Ratanang Primary School where the Human Resource Manager of the respondent indicated that the fixed term contracts of educators who do not possess a formal teaching qualification (Bachelor of Education, or Postgraduate certificate in Education) will not be renewed.
26. After the meeting He brought Mrs Dithejane a Human Resource Manager at the respondent’s district office of Bojanala to explain to the applicant. It is Mr Sibaeng the reason the applicant’s contract of employment was not renewed was that he did not complete his Postgraduate Certificate which would have made him to qualify as an Educator. It is Mr Sibaeng’s testimony that had the applicant had had enough time to complete his Postgraduate Certificate in Education.
27. Mr Sibaeng testified that he is aware of the letter informing the applicant of the withdrawal if permanent status of employment and that only reason the applicant’s fixed term contract of employment was not renewed is because the applicant is not qualified to teach at a high school. It is the testimony of Mr Sibaeng that the applicant was not dismissed, but his employment contract has come to an end.

ANALYSIS OF EVIDENCE AND ARGUMENTS

28. Section 192 of the LRA states:
    (1) ‘’In any proceedings concerning a dismissal, the employee must establish the existence of the dismissal;
    (2) If the existence of the dismissal is established, the employer must prove the dismissal is fair’’.
29. The existence of the dismissal is disputed by the respondent therefore the applicant bears the onus of prove the existence of the dismissal.
30. The applicant is challenging the substantive fairness of the dismissal.
31. According to the applicant’s testimony his employment with the respondent was terminated on 13 December 2023 when he was informed verbally by the School Principal of Mr Patrick Sibaeng and Miss Agnes Dithejane (The Human Resource Manager at Bojanala District North West Department of Education) that his services will be terminated at the end of the year. The only reason given to the applicant was that he did not complete his Postgraduate Certificate in Education. The applicant further testified that on 13 December 2024 after the meeting with Mr Sibaeng and Ms Dithejane he went to check his employment status at his district office, and he noted that it still said ‘’permanent’’.
32. The applicant referred to page 4 bundle R1, (his conversion letter signed by the District Director on 02 November 2023, back dating his appointment to 01 July 2023. I have perused the document; and indeed; it confirms the applicant’s conversion effective from 01 July 2023 to a permanent employee in terms of Collective Agreement 4 of 2018. It further indicated that ‘’The Department retains the right to make the necessary adjustments should your qualifications be evaluated incorrectly or should your salary be incorrect’’, and the respondent is given this right to convert and withdraw in terms of item collective agreement 4 of 2028.
33. The cross-examination by the respondent ‘s representative Mr Motshaba was more direct, and was able to test the version of the applicant. During the cross-examination reliability and probability of the applicant’s version was impacted negatively, and contrary to the applicant’s challenge. The respondent vehemently disputed the allegation of dismissal.
34. During cross-examination the applicant admitted that at the time of being appointed on the first and all his fixed term contracts he did not qualify as an Educator at a Secondary School as he did not have a professional teaching qualification. He was only in possession of Diploma in Business Management, and that even his SACE certificate indicated that the applicant is registered ‘’to teach in the Technical and Vocational Education and Training (‘’TVET’’) Sector’’.
35. Mr Motshaba’s version to the applicant during cross examination was that the applicant was informed to complete his PGCE within a time period while on fixed term contract for him to be converted to permanent employment, hence the applicant registered the same year 2020, and that even in the applicant’s application Employability Checklist he indicated that he is pursuing his PGCE studies, hence he was offered this fixed term contract.
36. It was put to the applicant by Mr Motshaba that it takes one (01) year full time or two (02) year to complete any Postgraduate Certificate with any institutions of higher learning within the Republic of South Africa, and that the applicant was given more that the required time to complete his qualification had he wished to complete it, and the applicant was unable to dispute the version.
37. Further to that, the respondent’s version put by Mr Motshaba to the applicant is that the conversion of the applicant from fixed term contract to permanent contract on 01 July 2023 was an error which was rectified and withdrawn after evaluation of the applicant’s qualification is more probable, as indeed it has been proved that the applicant did not have a formal qualification to be an Educator, and that according to the collective agreement on Educator on fixed term contract and must possess a formal teaching qualification before being converted. He referred to the withdrawal letter dated 02 September 2024 indicating the applicant did not fulfil the conditions required to be converted to permanent employment.
38. The undisputed version of the respondent is that for a fixed term employed Eduactor to be converted to a permanent educator he must at least possess Bachelors Degree in Education (BEd) or and those without a BEd must at least possess a Postgraduate Certificate in Education.
39. On the evidence presented to me the applicant’s employment status was not supposed to have been converted to permanent employment, and the only thing which would have rendered him professionally qualified to be converted was a PGCE which he did not possess, and still does not possess. He did not dispute this version when put to him by the respondent.
40. The respondent’s witness Mr Sibaeng a Principal at Sewagodimo Technical High School, where the applicant performed his duties as an Educator testified the he handed the letter of withdrawal of the applicant permanent employment status to the applicant on about September 2024 after he received it from the Bojanala District Office of North West Department of Education. Although the applicant is disputing having received it; the critical and relevant issue in front of me is whether the permanent status was withdrawn and whether was it erroneously granted which will have an impact on the true nature of the employment relationship at the time the employment relationship terminated.
41. As per the evidence of both parties, the last time the applicant signed a fixed term contract was in January 2023 which was to expire on 31 December 2023. However due to the applicant’s erroneous conversion to permanent he continued to work beyond the expiration of his fixed term period (31 December 2023).
42. It must be understood that when the applicant’s conversion was withdrawn on 02 September 2024, it meant that the terms and conditions of the last signed fixed term contract took precedent. It this case the applicant’s fixed term contract had already expired on 31 December 2023, in the absence of an offer of employment from the respondent (North West Department of Education) for the year 2024, it meant that the applicant’s continuation from the date 03 September 2023 until the 13 December 2024 cannot be attributed to mean an existence employment relationship between the respondent and the applicant.
43. In the matter ‘’Ouwehand v Hout Bay Fishing Industries (2004) 25 ILJ 731 (LC) it was stated that it is upon an employee to establish on a balance of probabilities, where that employee claims to have been dismissed in terms of Section 186(1)(a), some overt act by the employer that is the proximate cause of the termination of employment. A dismissal in this sense should be distinguished from a voluntary resignation (where the contract is terminated at the initiative of the employee) and the termination of a contract by mutual and voluntary agreement between the parties’’.
44. It is proved by the evidence in front of that the meeting on 13 December 2024 where the applicant was informed that his employment will terminate, and was not going to continue in January 2025 was not an overt act which terminated the employment relation.
45. I accept the respondent’s version and arguments that the applicant was not dismissed by the respondent, but his contract of employment with the respondent (North West Department of Education) reached an expiration date.
46. The applicant’s procedural challenge has no basis; as he did not lead any evidence with regards to the procedural aspect of his dismissal. My finding is that the applicant’s employment contract reached its expiration date impact the procedural fairness of the dismissal.
47. I find that the applicant, Abram Mabaakanye has not been dismissed by the respondent, North West Department of Education.

AWARD

48. I find that the applicant, Abram Mabaakanye has not been dismissed by the respondent, North West Department of Education.
49. The applicant is not entitled to the relief sought.

Signature:
Commissioner: Thobela Obey Mqamelo
Sector: Education