30 June 2025 2025 – ERLC1211-24/25MP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY

CASE NUMBER: ERLC1211-24/25MP
COMMISSIONER: MORAKA ABEL MAKGAA
DATE: 22 JUNE 2025

In the matter between:

MTHETHWA NONTOKOZO LILIAN APPLICANT

AND

EHLANZENI TVET COLLEGE RESPONDENT

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 The matter was heard virtually on 15 May 2025 and 12 June 2025. The applicant was always present and represented herself whereas the respondent was represented by Mr Sifiso Malinga, employed by the respondent as its Labour Relations Officer.

2 The proceedings were conducted in English, and were digitally recorded.
ISSUE TO BE DECIDED
3 I am required to determine whether the applicant was dismissed or not. If yes, whether the dismissal was fair or not. Should I find that the applicant was unfairly dismissed, I am required to determine the appropriate remedy.
FACTUAL BACKGROUND
4 The factual background to this matter is based on the parties’ signed pre-arbitration minute, which may be summarised as follows.
COMMON CAUSE FACTS
5 During May 2022 the applicant and the respondent entered into a written fixed-term contract of employment for the period 23 May 2022 until 31 October 2022. She was attached to Mlumati Campus. This contract of employment was extended on several occasions.
6 On 27 November 2024 the Applicant was given a letter with the subject heading “expiry of fixed-term contract and notice for termination”, in terms of which the Applicant was informed that the fixed-term contract will terminate on 31 December 2024. At the time of her dismissal the Applicant was earning R333 624.00 per annum.
FACTS AND ISSUES IN DISPUTE
7 The parties agreed that the following facts and issues are in dispute and must be decided by the arbitrator:
7.1 Whether or not the Applicant had a reasonable expectation of renewal of her fixed-term contract;
7.2 Whether or not the applicant was deemed appointed on a permanent basis by virtue of having worked for more 2 years and six months.
8 Aggrieved by non-renewal of her fixed-term contract, the applicant referred a dispute of alleged unfair dismissal to the ELRC for conciliation. The matter could not be resolved at conciliation. It was referred for arbitration and served before me on 15 May 2025, and served before me.
9 Mr Malinga for the respondent submitted a bundle of documents which was marked as Annexure “ETC1”, made up of 40 pages. The applicant did not submit an evidence bundle. The arbitration hearing was concluded on 12 June 2025. The parties were given until 19 June 2025 to submit written closing arguments. I wish to confirm receipt of the parties’ written closing arguments, which have been taken into account in this matter.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
10 Nontokozo Lilian Mthethwa, who is the applicant in this matter, testified under oath, and her evidence can be summarised as follows. She was attached to the Office Administration and Finance, Economics and Accounting Department.
11 She believed that she was unfairly dismissed due to the following reasons. Firstly, her performance as the lecturer was good or satisfactory in the sense that she was able to produce a high pass percentage rate. Secondly, she never committed any acts of misconduct during the course of her employment by the respondent.
12 She further testified that there were several lecturers were appointed by the respondent after her employment, though in different departments or faculties. A list of about three (3) lecturers was given. Her complaint was that their employment contracts were not terminated.
13 She further testified that she heard from some of her colleagues that some of lecturers whose services were not terminated did not have teacher qualifications. Her employment was terminated even though she was a professionally qualified teacher.
14 Lastly, she testified that her temporary appointment status should have been converted to a permanent appointment status because of the fact that she was, at the time of termination of her services, employed by the respondent for a period of more than three (3) months.
15 Under cross examination, she testified that she did not have much information about the structure called Labour Forum, even though it was not for the first time she heard about it. She further testified that she last attended a NEHAWU meeting during November 2024.
16 She declined to comment on the proposition that the purpose of the meeting which was held by the Campus Management Team and Labour, during November 2024, was to discuss the issue of non-renewal of fixed-term contracts, and that she was identified as one of the lecturers whose fixed-term contracts would not be renewed.
17 She disputed the proposition that their contracts of employment had to be terminated as a result of budgetary constraints contending that after their employment contracts were terminated the College Council advertised several positions at other campuses of the College, which included Kanyamazani, Barberton and Mapulane campuses.
18 She further testified that she did not bring the said advertisement to the arbitration hearing because she did not think it was important to do so. She conceded that she was unable to indicate any document which can be referred to in support of her claim that her temporary appointment status should have been converted to permanent appointment.
SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
19 Sydwell Sikhumbuzo Khumalo’s testimony, which was given under oath, can be summarised as follows. He is currently employed by the respondent as the acting Campus Manager at Mlumati Campus of Ehlanzeni TVET College.
20 He further testified that the students’ enrolment for the 2025 academic year was 1094. According to the applicable Post Provisioning Norm (“PPN”), their campus was allocated 37 educator posts. The staff compliment was 60 lectures, which meant that there was an overstaffing of about 23 lectures. During the first quarter of 2024 a communique was issued to all members of the staff in connection with this issue of overstaffing.
21 During the first week of September 2024 their campus was visited by both the Deputy Principal: Academic Services and the HR Manager. A staff meeting was called where they were informed that the finances of the College were not in a healthy state, mainly because bloated staff, particularly by VIP paid employees. The second cause was the fact that permanently appointed members of the staff were not fully utilized in the sense that they had fewer periods.
together
22 As part of costs containment measures, it was proposed that the number of VIP paid employees should be reduced by eight (8) lecturers. The campus management decided to involve organized labour, i.e NEHAWU and SADTU, in the process. It was ultimately agreed that the number of the lecturers should rather be reduced by five (5) lecturers. The applicant was one of the five (5) lectures whose services were to be terminated. The subjects which were taught by the identified lectures were allocated to permanently appointed lecturers.
23 Under cross examination, he insisted that all the letters of extension of employment contracts were given to all the affected lecturers, including the applicant. He further testified that he did not know reasons why the TVET College advertised posts in other Campuses after termination of the employment of the applicant and the other four (4) lecturers.
24 Daniel Phillemon Nkuna testified under oath, and his evidence can be summarised as follows. He has been appointed by the respondent as the Assistant Director: Human Resource Management and Development since 01 September 2022.
25 He further testified that the TVET College had employees who are appointed by the Department of Higher Education and Training (“DHET”) and those appointed by the College Council. It is only employees of the DHET who are appointed on the permanent organisational structure of the TVET College. The College Council does not have a permanent organisational structure. Their employees are appointed on contract basis as additional personnel, and they are paid from the coffers of TVET College and not from the funds allocated by DHET.
26 He corroborated Mr Khumalo’s evidence with regard to the purpose of and outcome of the visit of the Deputy Principal and the HR Manager to Mlumati campus. He also corroborated Mr Khumalo’s evidence regarding the facts and circumstances which led to termination of the contracts of employment of the applicant and the other four (4) lecturers.
27 Under cross examination, he testified that the letters of extensions were emailed to the Office of the Campus Manager for transmission to the affected lecturers. As to whether the applicant could be considered for placement in a post advertised in one of the campuses, he testified that the applicant was entitled to apply for any of the post(s) if she meets the inherent requirements of such post(s).
28 He further testified that the respondent could not renew the applicant’s contract of employment because it was no longer necessary for the respondent to do so, based on the needs of the TVET College.
ANAYSIS OF EVIDENCE AND ARGUMENT
29 Section 186(1) of the Labour Relations Act 66 of 1995 (“LRA”), in the relevant part, provides as follows:
“186 Meaning of dismissal and unfair labour practice
‘Dismissal’ means that-
(a) an employer has terminated employment with or without notice;
(Para. (a) substituted by s. 30 (a) of Act 6 of 2014 (wef 1 January 2015).
(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”.
(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 the employee on less favourable terms, or did not offer to retain the employee;
(Para. (b) substituted by s. 30 (a) of Act 6 of 2014 (wef 1 January 2015)”.
30 Starting with the question of reasonable or legitimate expectation of the applicant’s fixed-term contract of employment, in Joseph v University of Limpopo & Others , the Labour Appeal Court said the following:
“The onus is on an employee to prove the existence of a reasonable or legitimate expectation. He or she does so by placing evidence before an arbitrator that there are circumstances which justifies such an expectation. Such circumstances could be for instance, the previous regular renewals of his or her contract of employment, provisions of the contract, the nature of the business and so forth. The aforesaid is not a closed list. It all depends on the given circumstances and is a question of fact”.
31 The facts and circumstances which necessitated the employment and ultimate termination of the employment of the VIP paid employees are succinctly explained at paragraph 1 of the respondent’s written closing arguments in the following terms:
“…the College Council does not have a permanent structure, it only allows the College to appoint additional staff as and when there is a need to do so as well as the if funds do permit. Consequently, those two factors were the drivers that led to the non-renewal of her employment contract, as there was no longer a need and the funds were not allowing…”
32 The cumulative effect of the respondent’s evidence, which was either common cause or not dispute by the applicant, suggests that the contracts of employment of the applicant and the other four (4) College Council appointed lecturers could not be renewed beyond 31 December 2024 because of the operational requirements of the respondent. In the circumstances, it is abundantly clear that non-renewal of the applicant’s fixed-term contract of employment had nothing to do with satisfactory conduct or work performance of the applicant.
33 It is also my finding that the applicant had not been able to adduce any credible evidence proving or suggesting that the respondent could be blamed for an unfair conduct relating to selective (non) renewal of the fixed-term contracts of the lectures appointed by the College Council. In any event, the applicant had, on her own version and under cross examination, confirmed that she was not in the same faculty or faculties with the VIP paid lectures whose contracts of employment were not terminated.
34 In the circumstances, I am of the view that the applicant had not been able to establish, on a balance of probabilities, the existence of a reasonable or legitimate expectation that her fixed term contract of employment should have been renewed beyond 31 December 2024.
35 I am of the view that the applicant’s claim relating to conversion of temporary employment to permanent employment on the basis of the relevant provisions of Further Education and Training Colleges Act 16 of 2006 read with the Employment of Educators Act 76 of 1998 cannot be sustained. The undisputed evidence suggested that the VIP paid employees such as the applicant were not employees of the Department of Higher Education and Training occupying vacant and funded posts on the educator establishment of the TVET College. They were, for all intends and purposes, employees of the College Council who were not appointed to vacant positions of a permanent nature on any approved educator establishment of the TVET College. Simply put, VIP paid employees, including the applicant, are appointed additional to the educator establishment of the TVET College.
36 As to whether the applicant could be deemed to have been appointed on an indefinite duration in terms of the relevant provisions of section 198B of the LRA, the answer must be in the negative. The applicant’s claim would, in the first place, fail based on the reasons which have been outlined at the above paragraph.
37 It should be borne in mind that, at the time of the alleged dismissal, the applicant was earning R333 624.00 per annum whereas the earnings threshold determined by the Minister on 06 March 2025 for the purposes of section 198B, should not be in excess of R261 748.45. It simply means, as correctly argued by Mr Malinga, the ELRC would lack jurisdiction to arbitrate the applicant’s claim relating to conversion of her temporary employment to permanent employment.
38 Consequently, it is my finding that the applicant failed to discharge the onus of proving that she was dismissed within the meaning of section 186(1)(b) of the LRA. It effectively means that the applicant’s claim for unfair dismissal must be dismissed.
AWARD
39 The applicant’s claim of unfair dismissal in terms of section 186(1)(b) of the LRA is dismissed.