30 September 2025 -ELRC1179-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC1179-24/25WC

In the Arbitration matter between:
Suid Afrikaanse Onderwysunie obo Joan Van Heerden Applicant
and
Education Department of Western Cape Respondent

ARBITRATION AWARD

Venue of arbitration: Online (Via Microsoft Teams)
Date: 4 April 2025, 13 June 2025, 9 July 2025, 15 August 2025, 19 August 2025 and 22 August 2025.

Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Ms. Illoïs de Goede (SAOU Full-time Shop Steward)
Applicant: Ms. Sibahle Qhiphu
Respondent’s Representative: Ms. Valencia Veary (Labour Relations Officer) on 4 April 2025 and Ms. Leonie Van Der Sandt (Employee Relations Officer) from 13 June 2025.

DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration hearing was conducted on 4 April 2025, 13 June 2025, 9 July 2025, 15 August 2025, 19 August 2025 and 22 August 2025. The arbitration hearing was finalized on 22 August 2025. The parties submitted their Heads of arguments by 2 September 2025.

[2] The Applicant, Ms. Joan Van Heerden was represented by Ms. Illoïs de Goede, a full-time shop steward for Suid-Afrikaanse Onderwysunie (SAOU). The Respondent, Education Department of Western Cape was represented (on 4 April 2025) by Ms. Valencia Veary, the Respondent’s Labour Relations Officer. Ms. Leonie Van Der Zandt, the Respondent’s Employee Relations Officer appeared for the Respondent from 13 June 2025.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.

ISSUE TO BE DECIDED
[4] The Applicant referred an alleged unfair dismissal dispute to the ELRC. The Respondent raised a point in limine stating that the Applicant was not dismissed as she was employed on a fixed-term contract, which terminated on a specific date and she was aware of that. I have to determine whether dismissal was in existence or not. Should I find that dismissal was in existence, I have to determine whether the dismissal was for a fair reason and in accordance with a fair procedure being followed.
[5] The Applicant sought to be re-instated or alternatively re-employed. If re-instatement
or re-employment would not be possible, the Applicant would seek to be
compensated.

Common cause

[6] The following was regarded as common cause between the parties:
6.1 The Applicant was employed as a post level 1 educator at Parkvale Primary School.
6.2 She was employed from 1 January 2024 to 31 March 2024 and the contract was extended until 31 December 2024.
6.3 She was in a substantive vacant post.
6.4 Her monthly salary was R32 627.50.

SURVEY OF EVIDENCE AND ARGUMENTS
[7] All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this Award, (Section 138 of the LRA, as amended).
THE APPLICANT’S EVIDENCE AND ARGUMENTS

The Applicant submitted a bundle of documents consisting of 34 pages, admitted as Bundle “A” (hereinafter referred to as “A”).

Ms. Joan Van Heerden (the Applicant) testified under oath and her evidence was in essence, the following:

[8] She first started on contract at the school in January 2019 and she has been working there until the end of December 2024. Her contract was renewed for every year that she had been at the school. She expected that her contract would also be renewed after December 2024. There were certain nomination documents (forms) in respect of her appointment. There was one from 1 July 2020 with the end date being 30 June 2020, from 1 July 2020 with end date 31 December 2020 (page 26 of “A”). From 1 January 2021 until 30 June 2021 but it stated that the date she had to vacate the post as 31 December 2021 (page 28 of “A”). From 1 July 2021 with the end date as 31 December 2021 (page 29 of “A”), from 1 January 2024 until 31 March 2024 and it was automatically renewed. The end date of the contract was not communicated to her. She received a letter from the Principal on 8 December 2023 which stated that her contract would come to an end on 31 December 2023. The SGB found it fit to extent her contract until 31 March 2024.

[9] They were called to a meeting with the Principal on 20 March 2024 which was the day on which the school closed for school holidays. The called all the staff to that meeting in order to greet them so that they all can go on holiday. The Pincipal, on that day also told them that their contracts would be extended automatically. The Applicant stated that she never received the letter contained on page 76 of “B”. She only saw it during the arbitration proceedings. Page 76 of “R” is a letter from the Principal, Mr. C.J Hermanus, addressed to the Applicant and dated 20 September 2024. It stated the following:
“1. This letter serves as confirmation that your current fixed-term contract ends on 31 December 2024, which coincides with the 2024 Educator Establishment effective end date.
2. Any vacancy created due to natural attrition, needs to be offered to educators in addition to the establishment due to the reduction in posts in the 2025 Basket of Affordable Educator posts, before a temporary appointment on contract can be considered.
3. All vacancies within the schools of the Western Cape Education Department (WCED) will continue to be advertised, when and where applicable, and can be accessed via the E-Recruitment system of the Department.
4. I want to thank you for your services during the 2024 academic year and wish you all the best in your future endeavors.”

During cross-examination

[10] The Applicant agreed that page 31 of “A” was the staff establishment for the 2025 Educators and that it showed a reduction of 4 posts for the 2025 year. It indicated a reduction of one (1) Deputy Principal post and three (3) PL1 Educator posts in the staff establishment for 2025. The Applicant agreed that the school no longer has a Deputy Principal and that the 3 PL1 Educators were no longer at the school. She was referred to page 44 to 47 of “B” as the documents in respect of a meeting held with all contract staff on 19 March 2024. Page 44 was the notice of the meeting, page 45 and 46 was the minutes and page 47 was the attendance register. The Applicant stated that it looked like her signature on page 47 but she never signed the document. She stated that her signature was forged. She stated that the was no meeting held on 19 March 2024. The meeting was held on 20 March 2024 whereby the Principal only greeted them for going on holiday and he also gave them the documents to apply for their conversion to permanent. The Applicant stated that the Principal told them that they could complete their application forms for conversion during the holiday.

[11] It was put to the Applicant that the discussion that the Principal had with the contract staff during the meeting included the following:
“Everybody on contract posts are appointed until 31 December 2024. Conversions were opened yesterday in order to allow for schools to convert the educators. Hermanus stated: “The names submitted for conversion are N. Brandt, E. Davids, A. Farmer, C. Davids, A. Classen and J. Van Heerden. Even if I sent your names in, there would still be no guarantee that you would be converted. I’m not saying that you would be appointed permanently next year.”

[12] The Applicant stated that the meeting was on 20 March 2024 and the Principal arrived late. She stated that the Principal explained to them that his reason for being late was because he had to call in some of the contract educators for another meeting in order to explain to them that their contracts would not be renewed after 31 December 2024. The principal stated that the contracts of the contract educators whom he did not call to that other meeting would be automatically renewed. It was put to the Applicant that the Principal would testify that the meeting was held on 19 March 2024 and that the minutes was dated and signed by the Principal and Ms. Labahn (the Secretary) on 20 March 2024. The Applicant responded in the negative and stated that the only meeting that took place was the one on 20 March 2024.
[13] The Applicant was referred to WCED Circular 0008/2024 by the Head of Education and dated 15 March 2024, which stated amongst other things the following:
“A decision was taken to extent the contracts of educators appointed in vacant substantive posts until 31 December 2024.” The Applicant agreed that it was what the document stated.

[14] It was put to the Applicant that the reason for her non-conversion to permanent was because she was not suitably qualified to teach in the Intermediate phase because of her qualification. Her qualification only allowed her to teach Life Orientation as a subject in the Intermediate phase (page 72 and 75 of “B”). The Applicant stated that it was for the first time she was hearing that. She stated that she never saw the correspondence. She stated that she was teaching intermediate phase for over 27 years.

[15] The Applicant stated that the principal told them the following during a meeting held at the school on 13 December 2024:
“Contract workers I am not sure what is the intention of the WCED in the new year, but I will contact you in the new year.”

Mr. Elridge Aladdin Davids testified under oath as follows:

[16] He was employed as an educator post level 1 at Parkvale Primary School. He was on contract in 2024. His contract was terminated on 31 December 2024. He stated that Hermanus created an expectation on 13 December 2024. Hermanus told them during that meeting that they must enjoy the holiday and that he would get back to them during January 2025. He never heard from Hermanus until April 2025.

During cross-examination

[17] Davids agreed that his contract and the Applicant’s contract were extended until 31 December 2024. He agreed that they were both afforded an opportunity to apply for conversion. He agreed that the meeting was held on 19 March 2024 (page 44 of “B”). He stated that he was present in that meeting and the Applicant was also present. He stated that the discussion was about the contract educator positions which would be until 31 December 2024 and also that the six (6) educators could apply for conversion. He stated that the meeting was held on 19 March 2024 and he received the documents for his application for conversion from Hermanus on 20 March 2024. Davids stated that there was a meeting held on 20 September 2024. The Principal headed them letters as notification that their current fixed-terms contracts would expire on 31 December 2024 (page 92 of “B”). Davids stated that he signed for his letter, but the Applicant did not want to take her letter and she refuse to sign for it. The Applicant told Hermanus that according to her trade union, she did not have to sign. Ms. Hart signed as “per person” of “pp” for the application due to her refusal to sign for the letter.

[18] Davids stated that Hermanus did not say to them that they would receive contracts for the new year. He said to them that he would be in contact with them when the school started again (January 2025). Davids stated that what Hermanus said might have created some expectation.

THE RESPONDENT’S EVIDENCE AND ARGUMENTS

[19] The Respondent submitted a bundle of documents consisting of 96 pages, admitted as Bundle “B” (hereinafter referred to as “B”).

Ms. Elzette Koen testified under oath as follows:
[20] She was employed as Assistant Director: Advertised Serviced Post. She dealt with recruitment for WCED. She dealt with conversion since 2022. The Applicant was found not suitably qualified for conversion due to her qualification. She was found not suitably qualified to teach intermediate phase.

During cross-examination

[21] It was put to Koen that the Applicant also previously applied for conversion in 2023 via a link and she never received feedback on her application. Koen stated that letters were sent to District Directors based on the outcome for the applications in 2023. District Directors were requested to provide the outcome of the applications to the school Principals.

Mr. Gerald Hermanus testified under oath as follows:

[22] He was the Principal of Parkvale Primary School from on 1 October 2023. He was Deputy Principal at several other schools and he has been at the Department of Education for 34 years. He had a meeting with the contract educators on 19 March 2024. He informed them during that meeting that their contract would end on 31 December 2024. The Applicant was present during that meeting. She signed the attendance register. The outcome of the Applicant’s conversion application was that she was not suitably qualified to teach in the phase and the grade she was teaching on contract.

[23] Hermanus stated that he gave the Applicant the letter (page 77 of “B”) to inform her that her application for conversion was not approved due to her not being found suitably qualified. There was a meeting held on 20 September 2024. Applicant was present. The meeting was conducted in respect of the contracts of the contract educators ending on 31 December 2024. He handed out the letters to the educators during that meeting. He asked all educators to sign for receiving the letters, but the Applicant refused to sign. He requested Ms. Hart to sign as a result of the Applicant’s refusal to sign. Page 76 of “B” was the letter he gave to the Applicant which state that her contract would expire on 31 December 2024. He handed the letter to her during the meeting on 20 September 2024.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

[24] The Applicant’s case is not about her non-conversion to permanent, but about her contract not being renewed in 2025. The Respondent challenged the existence of dismissal and therefore the Applicant must proof that dismissal was in existence. Section 192(1) of the LRA states: “In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal. Section 192(2) of the LRA states: “If the existence of the dismissal is established, the employer must prove that the dismissal is fair.”

[25] The Applicant’s case is that she expected her contract to be automatically renewed for 2025 because she was not informed that her contract would end by 31 December 2024 and the school Principal (Hermanus) created an expectation during a meeting held on 13 December 2024, when he told them that he was not sure what the intention of the WCED was in the new year, but he would contact them in the new year.”

[26] The Respondent’s version is that no expectation was created and that the Applicant was informed by letters and during the meetings held that her contract would end on 31 December 2024. The Respondent’s version was supported by the Applicant’s own witness, Mr. Davids who testified that Hermanus handed the letter to the Applicant, which stated that the contracts would end on 31 December 2024, but she refused to sign for it. The testimony of Davids is also that Hermanus did not say to them that they would receive contracts for the new year (2025) but he told them that he would be in contact with them when the school started again (January 2025). I do not see how that could have created an expectation that the contract of the Applicant would be renewed for 2025.

[27] In Jones v CCMA and others (C 709/2018) [2021] ZALCCT 10 (handed down on 6 January 2021) the Court held that the question whether the Employer’s failure to renew the fixed-term contract of employment constitutes a dismissal within the meaning of section 186(1)(b) is a jurisdictional question. The standard to be applied during review process is that of correctness. The Court further held that a dismissal in terms of section 186(1)(b)(i) of the LRA is confined to determining whether there was a reasonable expectation that a fixed-term contract should be renewed and does not include an expectation about permanent employment on the expiry of a fixed-term contract.
[28] In University of Cape Town v Auf der Heyde [2001] 12 BLLR 1316 (LAC) the Court held that the test for reasonable expectation was two-fold. They first dealt with whether the Employee actually expected the contract to be renewed and the second, whether the expectation was reasonable.
[29] In NUM obo Mpaki v CCMA and others JR 1983/2014 (2016) ZALCJHB 354 (handed down on 9 September 2016) the Court held that the second part of the inquiry into a reasonable expectation is whether the subjective expectation, objectively assessed, is considered to be reasonable. Apart from the subjective perception, there must be an objective basis for the expectation, which is determined through the evaluation of all surrounding circumstances including the significance or otherwise of the contractual stipulations. The Court identified a number of factors, which may influence such a finding, namely:
a) agreements;
b) undertakings by the Employer;
c) custom or practice in regard to renewal;
d) the availability of the post;
e) the purpose or reason for conclusion of the fixed term contract;
f) inconsistent conduct;
g) failure to give reasonable notice;
h) the nature of the business

[30] The documentary evidence of the Respondent is supported by witness testimony of Hermanus and Davids that there were letters issued to the contract educators to inform them that their contracts would end on 31 December 2024. The evidence suggest that the Applicant was handed such letter but refused to sign for it and stated that she did not have to sign for it as per her trade union. The evidence suggests that there was no expectation created of a renewal of the contract for 2025, but what Hermanus said was that he would talk to them in the new year (2025).

[31] The evidence placed before me suggest that the Applicant’s dispute is in fact an alleged unfair dismissal dispute in terms of section 186(2)(b)(i) of the LRA – dismissal based on a reasonable expectation for the renewal of a fixed term contract, where the employee expected the employer to renew the contract on the same or similar terms, but where the contract was renewed on less favorable terms or not renewed at all.

[32] The Applicant did not discharge the onus during this arbitration to proof that dismissal was in existence. The evidence suggests that she was employed on a fixed-term contract which expired at the end of December 2024. The evidence suggests that there was a staff reduction in respect of the staff compliment at the school. The evidence suggest that the Applicant was issued with sufficient notice on the expiry of her contract. There is no evidence placed before me to suggest that the non-renewal of her fixed-term contract constituted a dismissal and that such dismissal was unfair.