30 January 2026 – ELRC126-25/26NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Commissioner: MN Masetla
Case number: ELRC126-25/26NW
Date of the award: 15 December 2025

In the matter between:
Mpho Rakoto Applicant
And
Department of Education – North West Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

This is an award in the arbitration between Mpho Rakoto, the applicant and the Department of Education – North West, the respondent.
The arbitration process was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191 (5) (a) of the Labour Relations Act, 1995 as amended (“the Act”) and the award is issued in terms of section 138 (7) of the Act.
The arbitration process was concluded on 01 December 2025.
The applicant appeared in person and was present and represented by Nikola Saekal, an attorney.
The respondent was represented by Mr Matshela T, of Labour Relations.

ISSUES TO BE DECIDED

I have to determine whether the applicant was dismissed or not.
Should I find that dismissal exist, I have to determine whether the dismissal was procedurally and substantively fair or not.
To order the appropriate relief.

BACKGROUND TO THE ISSUES IN DISPUTE

The applicant referred an unfair dismissal dispute to the ELRC. The dispute was then scheduled for a conciliation process on 13 June 2025 and remained unresolved. A certificate confirming non-resolution of the dispute was issued.
The applicant consented that the dispute be processed for arbitration.
During this arbitration, the applicant submitted her bundle of documents marked Exhibit “A” and the respondent’s bundle was marked Exhibit “E”.

SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case

Mpho Rakoto stated under oath that she obtained a Bachelor in Communication Studies Majoring in Setswana from North West University as well as a Post graduate Certificate in Education in Foundation Phase and Early Childhood Development from Unisa. She also has a SACE Certificate which allows her to teach. She started teaching Setswana from 2018 in Kuruman in the Northern Cape. In 2020, she taught Setswana and Life Orientation at a High School in the Northern Cape. In 2021, she taught Grade 1 and 2 which are foundation phases in Klerksdorp. In 2022, she went back to Kuruman and taught Grade 3.
In 2023, she came to Klerksdorp and taught in a substitute post at Masedi Primary School from January to March. From April 2023 until October 2023, she volunteered on an on and off basis. From September 2023 and October 2023, she received a stipend from the School Governing Body. In November 2023, she was employed in a vacant substitute position as informed by the principal. The contract ended in December 2023.
In January 2024, she reported for duty and the principal informed her that the Circuit Manager had issues with her PGCE Certificate. She was then advised to consult the Human Resources Division to enquire further. She then consulted Ubuhle from the circuit office who informed her that there was nothing wrong with her PGCE. Around May 2024, the principal advised her that he had sent her name and Mr Mamogale’s name to the Department for conversation into permanent appointment. This was further confirmed in a SADTU WhatsApp communication group. The principal indicated that the matter was referred to Mafikeng where the conversation process was to be finalised. In October 2024, she went on maternity leave and continued checking with the principal on whether he had received any communication from the Mafikeng office. The principal then informed her that he would revert back to her once he received feedback.
In January 2025, approximately four days prior to the schools reopening, she asked the principal if she could come back to school before the expiry of her maternity leave. The principal agreed. On arrival, the principal called her and three other temporary teachers. He informed them that he had received a PPM report which said one teacher had to be released. The principal said, that after looking at her qualifications, the school management decided to let her go. She then consulted SADTU union on the issue of her name being submitted to Mafikeng for conversation. On the issue of her qualifications, she then consulted with Ms Pooe from the Potchefstroom office of the respondent who told her that there were missing subjects on her PGCE certificate. One Lehlogonolo from the respondent’s office told her that she could only teach in Setswana medium schools. She however expected to resume her duties from maternity leave because she had expected her conversation to be concluded.
Ms Dikeledi Manyekani stated that the applicant was her colleague at Masedi Primary School. The applicant had filled in for her whilst she went on maternity leave. She stated that when the list of those who were to be converted was compiled, the applicant’s name was included. She stated that it normally takes three months for the conversion to be finalised. In November 2023, there was a teacher who was moved from Grade 3 to Grade R. She further stated that the number of teachers in 2025 at Masedi Primary School were between 18 to 19.

Respondent’s case

Ogorogile Alfred Motlhabane, the Principal at Masedi Primary School stated under oath that he is responsible for professional management of the school, representing the Head of Department within the school governing body, implementation of the policies and legislation of the department and running the daily operations of the school. He knew the applicant.
In January 2023, a teacher at the school went on maternity leave. The applicant’s name was picked up to execute the teacher’s responsibilities from 17 January 2023 until March 2023. After the period of relieving had expired in March 2023, the applicant remained at the school rendering services on a voluntary basis.
Around 30 June 2023, another teacher went on retirement. In order to fill this position, he had to fill in Annexure “D” form for a temporary teacher to be appointed. He then filled in Annexure “D” for the applicant to be appointed on a temporary basis and submitted the form to the Circuit Manager. This happened on 1 August 2023. The Human Resource then advised that the school had lost on post due to the Post Provisionally model (PPM). This then meant that the school could not qualify for temporary teacher. The applicant therefore could not be appointed as a temporary teacher in the space of the retired teacher. The applicant, without his knowledge, received a salary in November and December 2023.
In the year 2024, he had not filled any Annexure “D” form for the applicant since he was aware that the school did not have a position. The applicant again reported to the school as a volunteer. In September 2024, the applicant went on maternity leave. In January 2025, he also did not fill in any form for the applicant. The applicant called him to check if she could come back. He then said she could come back as a volunteer. The Circuit Office later provided a print out of all the names of teachers who must be at school in 2025. There were no temporary teachers. On the first day of school re-opening, he called a staff meeting and volunteering teachers. Subsequent to this, he received a letter from SADTU that the applicant is unhappy and felt dismissed.
He stated further that the conversation of a temporary teacher to a permanent position takes place only in respect of those teachers that are occupying a vacant substantive position. Volunteers and those teachers who are relieving do not qualify. He was requested to submit names of those who qualify for conversion to permanent appointment. He only submitted the names of Maaroganye and Molemane. He was surprised to hear that SADTU had submitted four names to the Site Steward. He denied that he had powers to dismiss a teacher.
Under cross examination, he stated that in the years 2024 and 2025, the school had twenty funded posts in terms of the Post Advisory Model. He agreed that the conversion of a temporary position to permanent appointment follows after the school would have submitted information to the District Office and to the Provincial Office. He stated that the SGB recommends and the Head of the Department appoints teachers. He denied that he offered the applicant a substantive position in November 2023. He denied that the applicant signed an appointment form at the school. He maintained that the last correspondence was in July 2023 when Annexure “D” form was rejected because the school lost a position. He stated that in 2024, the applicant was parked in Grade “R” assisting a teacher on voluntary basis. She was not at the school because she was appointed but it was a school arrangement. He stated that even if the applicant had the appropriate qualifications, she would not be appointed because there was no position. He denied that he was part of the WhatsApp conversation where the names of the temporary teachers to be converted were reflected.
She was a reliever between January 2023 to March 2023.

ANALYSIS OF PARTIES’ SUBMISSIONS

The applicant’s dispute is about an alleged unfair dismissal. The respondent denied this allegation of the existence of the dismissal. In terms of section 192 (1) of the Labour Relations Act 66 of 1995, as amended, the applicant has the onus of establishing the existence of her dismissal. If the dismissal is established, the respondent must prove that the dismissal was fair.
The applicant’s testimony was that she was employed as a substitute teacher for the period January 2023 until March 2023. Then she volunteered on and off. The applicant had a legitimate expectation that her position would be converted into a permanent position at the end of December 2024.
In this case, no documentary evidence was placed before me proving the appointment of the applicant as a teacher at the school. The appointing authority on behalf of the respondent is the Head of Department and his delegated official the principal of the school does not have the authority to appoint a teacher. This is evident from the fact that documents will always be sent to the District Office or Mahikeng Provincial Office for approval. It was also the applicant’s case that she had a contract of employment which lapsed the end of December 2024.
It was further the applicant’s version that the principal had sent her name to the Provincial office of Mahikeng for conversion and she continued checking on how far the process was. It is therefore clear that there was no appointment or conversion of the applicant’s position into a permanent position. The fact that the principal may have promised the applicant that there will be a conversion of her position, that in itself cannot be binding upon the respondent.
The applicant introduced conversions that took place in a SADTU union group where the principal identified the applicant for possible conversion. Again, the fact that the applicant was identified for possible conversion and discussed in SADTU group cannot be seen to be a decision of the respondent.
Having considered the evidence before me, I found that the applicant failed to establish the existence of her dismissal.

AWARD