IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
CASE NO: JR 1766/24
In the matter between
FULUFHEDZANI FRIDAH DZGANA Applicant
and
EDUCATION LABOUR
RELATIONS COUNCIL (ELRC) First Respondent
VUSI MOYO N.O. Second Respondent
TSHWANE NORTH TVET COLLEGE Third Respondent
Heard: 26 March 2026
Delivered: 28 August 2026
Summary: The non-renewal of a fixed- term contract constitutes a dismissal
within the meaning of s186(1)(b) of the LRA . The dismissal is unfair, at
minimum procedurally. The commissioner committed a reviewable error of law
by requiring the employee to discharge an evidentiary burden on the
interpretation of the Circulars — a question of law, not of fact.
JUDGMENT
(1) Reportable: Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
SWARTZ AJ
Introduction
[1] This is an unopposed review application brought in terms of section 145 of the
Labour Relations Act 66 of 1995 (“the LRA”). The applicant seeks an order
reviewing and setting aside the Education Labour Relations Council (“the
ELRC”) ruling issued by the second respondent (“the commissioner”) on
21 August 2024, in which the commissioner found that the applicant had not
been dismissed and, consequently, dismissed her unfair dismissal claim
arising from the non-renewal of her fixed-term contract.
Factual background
[2] The applicant was employed by the third respondent (“the College”), a state-
owned college, from 15 August 2019 until 31 December 2023 under a series
of fixed- term contracts, predominantly in the position of Financial
Management Lecturer. This position fell under Ministerial Programmes.
[3] The applicant’s fixed-term contracts spanned over the following period:
3.1 15 August 2019 to 31 December 2019;
3.2 10 February 2020 to 31 December 2020;
3.3 8 February 2021 to 30 April 2021;
3.4 1 May 2021 to 31 December 2021;
3.5 1 January 2022 to 31 December 2023; and
3.6 1 October 2022 to 31 December 2023.
[4] The applicant was employed and initially paid by the College. On
30 November 2023, the applicant was issued with a notice that her fixed-term
contract would expire on 31 December 2023.
[5] Aggrieved by the termination of her employment, which she regarded as a
dismissal, the applicant referred an unfair dismissal dispute to the ELRC. The
3
College opposed the dispute, and the arbitration proceedings were conducted
over five days. The College called three witnesses, while the applicant was
the sole witness in support of her case.
[6] The College has not opposed this review application.
The Applicant’s Submissions
[7] The applicant based her case principally on two C irculars issued by the
Department of Higher Education and Training. The first, Circular 30, dated
9 October 2020, dealt with the implementation of the Post Provisioning Norms
(“PPN”) in Technical and Vocational Education and Training (“TVET”)
colleges. The College was one of the TVET colleges to which Circular 30
applied.
[8] Circular 30 stipulated inter alia that:
“It is crucial that the practice related to the termination of contracts related to
Ministerial Programmes and the advertising of new positions related to the
PPN Model and college structure ceases with immediate effect until the
approved implementation Plan and Policy Manual is signed off and published.
Colleges or to note that a recent submission related to the permanency of
contract staff associated with the delivery of Ministerial Programmes has
been approved by the M inister and is currently being implemented via the
head office HRMA unit. The termination of existing contracts at this stage is
likely to be counterproductive to this aim. The above should also apply to staff
members appointed by C ollege Councils currently associated with the
Ministerial Programmes.
In view of the above the circular serves to place a Moratorium on the filling of
any new vacant position(s ) associated with approved PPN model and
standardized structure in TVET colleges, as well as the discontinuation of
termination of existing contracts of staff delivering on Ministerial Programmes
until due process around permanency of contract employees in such
programmes and the PP N in implementation is completed. Any existing
recruitment drives are to be deferred until formal approval of the PP N Policy
recruitment drives are to be deferred until formal approval of the PP N Policy
and Implementation Procedure Manual is published.
4
Failure to therefore adhere to the content of this Circular will be deemed a
deviation to a clear Department directive.”
[9] The second, Circular 40, dated 8 December 2020, is headed
“CLARIFICATION ON CIRCULAR 30 OF 2020 REGARDING
MORATORIUM…” and stipulated inter alia that;
“All staff identified as offering Ministerial Programmes and therefore eligible
for (blank) into posts in the standardized college structure are ring fenced,
and remain in the sector until the completion of the PPN implementation
process. This relates to staff employed on both the college and the Persal
payrolls currently.
In view of the above, this circular serves to reinforce and clarify the existing
moratorium on the filling of any new vacant post(s ) associated with the
approved PPN model and standardized structure in the TVET colleges, as
well as the deferment of termination of existing contracts of staff delivering
ministerial programmes, (employed both via the Persal or College payrolls ),
until due process around the PPN implementation is completed.
College management is also advised that no recommendations for
appointment that are against the spirit and intent of C ircular 30 of 2020 on the
Moratorium will be considered. Failure to adhere to the content of both
circulars will be deemed a deviation from the a D epartmental directive which
will be dealt with in terms of the Public Finance Management Act (PFMA),
applicable Public Service Regulations and Labor Relations prescripts.”
[10] The applicant also referred to an Internal Memorandum dated 12 January
2024 that stated inter alia that “ Ministerial approved Programmes will not be
terminated be until the end of the cycle of the PPN process (31 March 2024)
to ensure continuity and stability.”
[11] The applicant further contended that, having regard to the successive
extensions of her fixed- term contracts, together with the other surrounding
circumstances, she had acquired a reasonable expectation that the College
circumstances, she had acquired a reasonable expectation that the College
would retain her in employment until at least 31 March 2024 and/or on an
indefinite basis.
5
[12] The applicant's case was that she had a reasonable expectation of being
appointed on a permanent basis once the PPN was implemented. She
contended that Circulars 30 and 40 applied directly to her because she had
been employed on successive fixed- term contracts within the Ministerial
Programmes and that, accordingly, her post fell within the category of posts
contemplated by those circulars.
[13] Accordingly, the applicant contended that the termination of her final fixed -
term contract upon its expiry on 31 December 2023 constituted a dismissal as
contemplated in the LRA.
[14] The applicant's grounds of review are, in essence, that the commissioner
committed a gross irregularity in the conduct of the proceedings and reached
an unreasonable result. First, she contends that the commissioner
misconstrued Circulars 30 and 40 and placed undue reliance on the so-called
interpretation of those circulars. In particular, she challenges the adverse
inference drawn from her failure to subpoena the authors of the Circulars to
testify as to their meaning and application.
[15] Secondly, the applicant contends that the commissioner failed properly to
appreciate the circumstances which, on her version, created a reasonable
expectation of permanent employment. She submits that, if the College no
longer required her services because it could not afford to retain her, it was
required to terminate her employment through a retrenchment process in
terms of section 189 of the LRA rather than simply permitting her fixed- term
contract to expire.
[16] Thirdly, the applicant contends that the commissioner failed to properly
consider and apply section 198B of the LRA. Her case is that, having been
employed on successive fixed- term contracts for a period exceeding the
statutory threshold contemplated in section 198B, her employment ought to
have been regarded as being of indefinite duration, absent a justifiable reason
for fixing the term of her employment.
6
The Third Respondent’s (the College’s) Submissions
[17] Although the College did not oppose the review application, in order to
determine the application fairly, it was nevertheless necessary to consider the
College's case as it emerged from the arbitration transcript and the evidence
placed before the commissioner. This was necessary to determine whether
the commissioner's award was one that a reasonable decision- maker could
reach.
[18] The College's case was that the applicant had been employed on successive
fixed-term contracts to address temporary lecturing needs arising from
vacancies created when permanent lecturers were no longer employed by the
College, as well as to accommodate periods of student over-enrolment.
[19] Each of the applicant’s fixed-term contracts expressly stated that “It should be
noted that the extension should not be construed to be a permanent
appointment.”
[20] During 2023, the College did not reach its targeted student enrolment
numbers and, consequently, no longer had an operational need for the
applicant's services. The College's case was therefore that the applicant's
final fixed-term contract simply expired on 31 December 2023 in accordance
with its terms and was not renewed because the operational need for which
she had been employed no longer existed.
[21] The applicant was one of fourteen lecturers whose fixed- term contracts were
not renewed. On 28 November 2023, Mr Thambe, the College's Assistant
Director: Curriculum Implementation, and the College’s second witness,
addressed an internal memorandum to Ms Tsibogo of the Department of
Higher Education and Training, which stated, inter alia, as follows: “We,
therefore, request the approval to terminate the services of 14 college paid
lecturing staff due to insufficient workload for 2024.”
[22] The College's witnesses testified that Circulars 30 and 40 did not apply to the
applicant because she had not been employed pursuant to the PPN. Rather,
applicant because she had not been employed pursuant to the PPN. Rather,
her fixed- term employment arose from the College's temporary operational
7
need to accommodate student over -enrolment. Her remuneration was funded
by the College itself and not by the Department of Higher Education and
Training. Accordingly, the applicant's post was not one of the posts ring-
fenced for conversion to permanent employment under Circulars 30 and 40.
Analysis of the facts and reasoning
[23] The test on review is trite. The question is whether the commissioner’s ruling
is one that a reasonable decision- maker could have reached on the material
before him or her. This Court is not sitting as a court of appeal and is
therefore not concerned with whether the commissioner was correct, but
rather whether the outcome reached falls within the band of decisions to
which a reasonable decision-maker could have come. Accordingly, the review
test is fundamentally different from that applicable on appeal.
[24] The commissioner found that the College had not created a reasonable
expectation that the applicant would be employed on a permanent basis. In
reaching that conclusion, t he commissioner placed considerable reliance on
his interpretation of Circulars 30 and 40. He rejected the applicant's
interpretation of the circulars and, in particular, her contention that they had
the effect of ring-fencing her post until March 2024. The commissioner further
reasoned that, because the applicant had not called the authors of the
Circulars to testify as to their meaning and application, she had failed to
establish the interpretation upon which her case depended.
[25] In this regard, the commissioner in his analysis of the evidence stated that
1:
“The Applicant attested that she derived an expectation of renewal from the
two Circulars issued by DHET. However, in her evidence she failed to make
concerted efforts to ensure that the responsible DHET official/s are
subpoenaed to testify on the interpretation of their circulars.
I find that the Applicant party placed itself in an elevated and condescending
I find that the Applicant party placed itself in an elevated and condescending
tower in believing that it has the sole correct interpretation of the C irculars
1 The arbitration award at paras 60 – 64.
8
above the HOD, AD of Curriculum Implementation and the Recruitment &
Selection Officer without any input from the authors of the document…
Of the essence is the underlying reality that in the absence of an expectation
being created specifically by the college (B eing the R espondent in this
matter), the Applicant party elected to rely on an external documents from the
DHET and opened a superficial debate about the interpretation thereof. The
casual fact is that this matter was not referred as an interpretation and
application dispute but rather an unfair dismissal dispute emanating from the
non-renewal of the fixed term contract in terms of section 186(1 )(b) of the
LRA…
The Applicant was unreasonably obstinate in this regard as the C irculars
have to be equally read with the economic realities of the college. It was
never disputed that the college had no funds, hence assistance had to be
sought from the DHET until termination of the FTC. Any continuation from
January - March 2024 would have been would have neither state funding nor
revenue from student fees.”
Interpretation of Circulars 30 and 40 of 2020
[26] Departmental circulars issued by the DHET are properly characterised as
"administrative quasi -legislation."2 As such, they serve as authoritative
internal guides to the exercise of administrative discretion by subordinate
officials and institutions within the Department's regulatory sphere. They are
not enacted through the ordinary legislative process and lack the formal
authority of statutes or regulations, but they carry significant administrative
weight within the hierarchy they govern.
[27] In this Court's view, Circular 30 must be interpreted according to the ordinary
and plain meaning of the language used, considered in its proper context and
having regard to its purpose. Of particular relevance, Circular 30 provides,
inter alia , that: “… the discontinuation of termination of existing contracts of
staff delivering on Ministerial Programmes until due process around
staff delivering on Ministerial Programmes until due process around
2 Munyai and Another v Director General of Home Affairs and Another 2024 (2) SA 635 (GP) at para
14.
9
permanency of contract employees in such programmes and the PPN in
implementation is completed.”
[28] South African courts apply a unitary interpretive approach to all legal
instruments whether statutory, contractual, or administrative. The foundational
articulation of this approach in South African law is the Supreme Court of
Appeal's judgment in Natal Joint Municipal Pension Fund v Endumeni
Municipality,
3 which has been consistently applied in labour law. Under this
approach, consideration must be given simultaneously to the language used,
the context in which the provision appears, and the purpose to which it is
directed. Pure textual literalism , mechanically applying words divorced from
their context and purpose, is rejected.
4
[29] The Labour Appeal Court applied this approach directly to a departmental
circular in HOSPERSA obo Naidoo and Others v MEC Department of Health
KZN.5 The Court held that the circular had to be read "in light of the resolution
it implements, the [parent] statutory provisions on ministerial directives, and
the need for consistency." An interpretation giving effect to the purpose of the
circular was preferred over a strictly literal reading, and an arbitrator who
"gave an interpretation that gave effect to the purpose of the resolutions and
the circular" was affirmed as having acted correctly. The C ourt further
confirmed that interpretation must be approached with regard to "the aim,
purpose and all the terms" of the relevant instrument.
[30] The Labour Appeal Court in NUMSA v Motor Industry Staff Association
6
confirmed that interpretation must proceed with regard to the "objects and
purpose" of the instrument and that a normative approach is required, rather
than a mechanical literalism.
[31] A purposive interpretation does not, however, displace the primacy of the
language actually used. The Endumeni approach requires text, context and
purpose to be considered together, rather than permitting purpose to override
purpose to be considered together, rather than permitting purpose to override
3 [2012] ZASCA 13 (Wallis JA at para 18).
4 HOSPERSA obo Naidoo and Others v MEC Department of Health KZN and Others (2025) 46 ILJ
933 (LAC) at para 30.
5 (2025) 46 ILJ 933 (LAC).
6 (2025) 46 ILJ 109 (LAC).
10
clear wording. Where the language, properly considered in its context, admits
of only one sensible meaning, effect must be given to that meaning.
[32] That principle is directly applicable in the present matter. If Circulars 30 and
40, properly construed in their textual and contextual setting, unambiguously
prohibited the termination of the contracts of employees falling within their
scope during the relevant moratorium period, effect had to be given to that
prohibition. The meaning of the circulars was an objective question of
interpretation. It did not depend upon the subjective intentions or opinions of
their authors. Accordingly, the applicant's fail ure to call or subpoena the
authors of the circulars could not, without more, constitute a proper basis for
rejecting the interpretation advanced by her.
[33] The commissioner's approach, in requiring the applicant to prove her
interpretation of the Circulars by calling their authors, reflects a misconception
of the interpretative exercise. The meaning of a written instrument is not
ordinarily a factual issue which a party is required to prove through the
evidence of its author. While evidence concerning the context and purpose of
an instrument may, where appropriate, assist in its interpretation, the
interpretation of the instrument remains a matter for the deci sion-maker,
having regard to its text, context and purpose.
[34] This distinction is particularly important in the present matter. The applicant's
case was that the relevant provisions of Circulars 30 and 40 were clear on
their face and prohibited the termination of the contracts of employees falling
within their scope during the stipulated period. If that construction is correct,
the commissioner was required to determine the meaning and effect of those
provisions by applying the established principles of interpretation. The
applicant's failure to subpoena the authors o f the Circulars could not , in itself,
constitute a proper basis for rejecting her interpretation.
constitute a proper basis for rejecting her interpretation.
[35] The commissioner's reasoning effectively converted a question of
interpretation into an evidential burden resting upon the applicant. In doing so,
he asked the wrong question. The enquiry was not whether the applicant had
proved, through the authors of the Circulars, what they intended the Circulars
11
to mean, but what the Circulars objectively meant when their language was
considered in its proper context and having regard to their purpose. To the
extent that the commissioner rejected the applicant's case because she failed
to call the authors to prove her interpretation, his approach was materially
flawed.
[36] The commissioner's misdirection was not merely methodological. By treating
the interpretation of the Circulars as a factual matter which the applicant was
required to prove through the evidence of their authors, the commissioner
committed a material error of law. In doing so, he misconceived the nature of
the enquiry before him and materially affected the reasoning process that led
to his ultimate conclusion. The ruling is therefore susceptible to review under
section 145 of the LRA.
[37] The Labour Appeal Court in NUMSA v Motor Industry Staff Association and
Others
7 confirmed this principle, drawing expressly on Herbert v Head of
Education (LAC)8:
"Where an arbitrator commits a material error of law in the interpretation of
[an instrument], the result is an award that is both incorrect and
unreasonable, capable of review either on the basis of its incorrectness or for
being unreasonable."9
[38] The purposive approach requires Circulars 30 and 40 to be interpreted having
regard to their language, context and evident purpose. The apparent purpose
of the moratorium on the termination of the contracts of employees falling
within the scope of the Circulars was to afford those employees protection
against the termination or non- renewal of their contracts during the stipulated
period.
[39] An interpretation which deprives that protection of practical effect cannot
readily be reconciled with that purpose. If the Circulars contain clear
prohibitory language, requiring the applicant to adduce additional evidence
7 (2025) 46 ILJ 109 (LAC) at para 26 -27
8 (2022) 43 ILJ 1618 (LAC)
9 At para 27
12
from their authors to “prove” what that language means not only misconceives
the interpretative exercise but risks undermining the very protection the
Circulars were intended to afford. The Circulars were required to be
interpreted objectively, having regard to their text, context and purpose, and in
a manner that gives practical effect to their evident object rather than renders
their protection ineffective.
[40] The Circulars, properly interpreted, clearly prohibited the termination of the
contracts of employees falling within their scope during the relevant period,
the commissioner was required to give effect to that prohibition. His refusal to
do so on the basis that the applicant had failed to prove the meaning of the
Circulars through the evidence of their authors constituted a material error of
law. The commissioner thereby misconceived the nature of the interpretative
enquiry and failed to apply the Circulars according to their objective meaning.
To that extent, the ruling is susceptible to review under section 145 of the LRA
on the standard applicable to a material error of law.
[41] The question that then arises is whether the fact that the applicant's fixed-term
contract expired before 31 March 2024, being the date by which the PPN was
to be implemented, justified the termination of her employment on
31 December 2023. The answer to that question turns on whether,
notwithstanding the stated expiry date of her contract, the applicant had
acquired a reasonable expectation of continued employment as contemplated
in section 186(1) of the LRA.
Reasonable expectation
[42] The transcript of the evidence of the College's first witness, Ms Baloyi, the
Head of Department, is not contained in the record. Her evidence is, however,
summarised in some detail by the commissioner in paragraphs [8] to [26] of
the award. Having regard to that summary, the fact that the review application
is unopposed, and the prejudice that the applicant would suffer if the matter
is unopposed, and the prejudice that the applicant would suffer if the matter
were removed from the roll solely because of the incomplete transcript, I
consider that there is sufficient material before this Court to determine the
13
review. In these circumstances, it is in the interests of justice that the matter
be determined on the record as it stands.
[43] Although paragraph 66 of the founding affidavit makes reference to section
198B of the LRA, there is nothing in the record establishing that the applicant
earned below the applicable earnings threshold and was therefore entitled to
rely on the protections afforded by that section. In the absence of such
evidence, there is no factual basis upon which this Court can conclude that
section 198B applied to the applicant or that her employment was deemed to
be of indefinite duration by operation of that provision.
[44] Accordingly, the focus is on section 186(1)(b) of the LRA that defines
"dismissal" to include scenarios arising at the end of a fixed- term contract.
This section provides that a dismissal occurs where an employee employed
on a fixed-term contract reasonably expected the employer:
(i) to renew the fixed- term contract on the same or similar terms, but the
employer offered to renew it on less favourable terms or did not renew
it; or
(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 retain the employee on less favourable terms
or did not offer to retain the employee at all.
[45] The test requires both a genuine subjective belief by the employee that
renewal (or indefinite retention) would occur, and an objective foundation for
that belief , that is, whether a reasonable employee in those circumstances
would have formed the same expectation. The onus lies on the employee.
[46] In Member of the Executive Council for the Department of Finance Eastern
Cape v De Milander & Others
10. That decision summarised the approach
adopted:11
10 (2011) 32 ILJ 2521 (LC) at para 32 – 34.
11 Upheld on appeal in De Milander v Member of the Executive Council for the Department of
Finance: Eastern Cape & others (2013) 34 ILJ 1427 (LAC)
14
“The onus to prove that the dismissal occurred in circumstances where the
employee had a reasonable expectation that the fixed-term contract would be
renewed at the end of its period rests with the employee. A dual enquiry is
conducted in determining the existence of reasonable expectation. The first
enquiry is subjective and entails enquiring into the subjective basis upon
which the person who claims reasonable expectation relies in contending that
his or her contract ought to have been renewed. The enquiry into reasonable
expectation ends if the employee fails to show that he or she had the
expectation that the period of the fixed-term contract would be extended. If
the employee is successful in showing that he or she had a subjective
expectation that the contract would be renewed then the second enquiry
entails determining the existence of such an expectation on the basis of the
objective facts that existed prior to the termination of the contract.
In SA Rugby the Labour Appeal Court per Tlaletsi JA summarizes the
meaning of s 186(1)(b) of the LRA as follows at para 43:
'What s 186(1)(b) provides for is that there would be a dismissal in
circumstances where an employee reasonably expected the employer to
renew a fixed-term contract of employment on the same or similar terms but
the employer only offered to renew it on less favourable terms or did not
renew it. The operative terms in s 186(1)(b) are, in my view, that the
employee should have a reasonable expectation, and the employer fails to
renew a fixed-term contract or renews it on less favourable terms. The fixed-
term contract should also be capable of renewal.'
Court then went further to summarize what needs to be done to satisfy the
objective tests as follows at para 44:
'The appellants carried the onus to establish that they had a "reasonable
expectation" that their contracts were to be renewed. They had to place facts
which, objectively considered, established a reasonable expectation.
which, objectively considered, established a reasonable expectation.
Because the test is objective, the enquiry is whether a reasonable employee
would, in the circumstances prevailing at the time, have expected the
employer to renew his or her fixed-term contract on the same or similar terms.
As soon as the other requirements of s 186(1)(b) have been satisfi ed it would
then be found that the players had been dismissed, and the respondent (SA
15
Rugby) would have to establish that the dismissal was both procedurally and
substantively fair.' ”
[47] In Joseph v University of Limpopo and Others 12 this Court pointed out that, in
deciding whether or not an employee has established that he had a
reasonable or legitimate expectation that the contract would be renewed, the
Court will have regard inter alia to previous regular renewals of his contract of
employment, terms of the contract and the nature of business , but it pointed
out that the list was not exhaustive. This means that where there is evidence
of regular renewal of the employee’s contract of employment in the past by
the employer, the Court will most likely consider it as a strong indication that
the parties intended to extend their employment contractual relationship.
[48] Although the applicant's fixed- term contracts expressly provided that any
extension or renewal should not be construed as constituting permanent
appointment, that provision is not , in itself, dispositive of the enquiry. The
existence of a reasonable expectation must be determined objectively, having
regard to the totality of the circumstances surrounding the employment
relationship.
[49] Having considered the arbitration bundle together with the transcript of the
proceedings, I am satisfied that the objective facts established that the
applicant had acquired a reasonable expectation that her fixed- term
employment would be renewed on an indefinite basis. That conclusion does
not rest upon the applicant's subjective belief alone, but is supported by a
number of objective factors, including the following:
49.1 Although the applicant was initially employed to assume the lecturing
responsibilities of Mr Bruno, who had resigned in 2019 , and thereafter
those of Ms Mogale, who had passed away in 2021, her employment
did not end once those immediate circumstances had passed.
Instead, the College continued to renew her fixed-term employment. In
Instead, the College continued to renew her fixed-term employment. In
total, the applicant's contract was renewed on six occasions, resulting
in an uninterrupted employment relationship spanning more than four
12 [2011] 12 BLLR 1166 (LAC)
16
years. The repeated renewal of her contract over such an extended
period is a material objective factor in determining whether she had
acquired a reasonable expectation of continued employment;
49.2 On 1 October 2022 , the applicant was called to the College's Human
Resources Department and requested to sign a new contract of
employment. She was informed that she was being migrated to the
Department of Higher Education and Training and that, as a
consequence, her remuneration would no longer be funded by the
College but by the Department;
49.3 At a later stage, although the precise date is unclear from the record,
the applicant was again called to the Human Resources Department
and requested to complete Government Employees Pension Fund
(GEPF) nomination forms. When she enquired why she was required
to complete those forms, the HR official made reference to her
anticipated “absorption”;
49.4 The applicant testified that, as a result of these representations and
the surrounding circumstances, she understood that she was to be
absorbed into a permanent position and would thereafter be employed
by the College on an indefinite basis;
49.5 The applicant's evidence was that she had always understood that, as
a fixed- term employee, she fell within the PPN program and that
Circulars 30 and 40 applied directly to her and governed the
continuation of her employment;
49.6 The College's contention that the applicant did not fall within the PPN
program was, on her evidence, raised for the first time during the
arbitration proceedings. She testified that this allegation was “ very
new to me”. There is no indication that, during the course of her
employment, the College had informed her that she fell outside the
PPN programme or that Circulars 30 and 40 did not apply to her
employment;
17
49.7 The applicant testified that, during a meeting, the Principal expressly
assured her that, because she was lecturing in the Ministerial
Programs, her contract would not be terminated; and
49.8 The applicant expressly stated in her evidence on several occasions
that she was not expecting any notice of termination and that she
would be employed on an indefinite basis.
[50] The decision of the Labour Appeal Court in Ekurhuleni West College v
Education Labour Relations Council and Others
13 is instructive, particularly
because it concerned fixed- term employment in the education and lecturing
context. In that matter, the employee had been employed as a lecturer under
three consecutive three- month fixed-term contracts. The arbitrator found that
the requirements of section 186(1)(b) of the LRA had been established and
that the employee's non- renewal constituted a dismissal which was both
substantively and procedurally unfair. The Labour Appeal Court declined to
interfere with that conclusion, holding that the arbitrator's award fell within the
bounds of reasonableness.
[51] The facts of the present matter provide an even more substantial objective
foundation for the applicant's expectation of continued employment. Unlike the
comparatively short succession of contracts in Ekurhuleni West College , the
applicant's employment extended over more than four years , and her fixed-
term contract was renewed on six occasions. Those repeated renewals must,
moreover, be considered together with the representations made to her
concerning her migration to the Department, the request that she complete
GEPF nomination forms, the reference to her anticipated absorption, and the
Principal's assurance that, because she lectured in the Ministerial Program s,
her contract would not be terminated. Viewed cumulatively, these
circumstances provide compelling objective support for the applicant's
expectation that her employment would continue
expectation that her employment would continue
[52] The evidence set out above constitutes material objective factors supporting
the applicant's contention that she reasonably expected her employment to
13 (JA55/2016) [2017] ZALAC 75.
18
continue until at least 31 March 2024 and/or on an indefinite basis. The
commissioner failed to properly consider these factors and instead focused
predominantly, and incorrectly, on the interpretation of Circulars 30 and 40. In
doing so, he failed to consider the totality of the evidence relevant to whether
the applicant had established a reasonable expectation of continued
employment and, as such , failed to apply his mind to whether there was a
dismissal.
There was a dismissal
[53] For the reasons stated above, I find that the applicant was dismiss ed under
section 186(1)(b) of the LRA.
[54] When questioned by the commissioner concerning the applicant’s expectation
of continued employment, the applicant testified that she expected her
employment to continue at least until 31 March 2024, by which date the PPN
process was expected to have been finalised. Thereafter, in her words, she
would “see what they will do”. Her evidence therefore established, at the very
least, an expectation that her employment would continue beyond the expiry
of her fixed-term contract on 31 December 2023 and until 31 March 2024.
[55] The significance of the applicant's reference to 31 March 2024 should not be
overlooked. That date was not arbitrary. On the evidence before the
Commissioner, the applicant could only reasonably have acquired knowledge
of that specific date either from the meeting with the Principal , about which
she testified, or from the internal memorandum issued by Ms Tsibogo dated
12 January 2024, the Principal. Paragraph 2 of that memorandum records:
“At one of the Post Provisioning Norms (PPN) College Implementation
Committee (CIC) meeting, it was resolved that contracts of Lecturers offering
the Ministerial approved Programmes will not be terminated until the end of
the cycle of the PPN process (31st March 2024) to ensure continuity and
stability.”
[56] The contents of the memorandum therefore materially corroborate the
stability.”
[56] The contents of the memorandum therefore materially corroborate the
applicant's evidence that she met with the Principal and was informed that,
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because she lectured in the Ministerial -approved Program s, her contract
would not be terminated before the completion of the PPN process on 31
March 2024. Importantly, the applicant's evidence as to her expectation of
continued employment until that precise date was therefore not based merely
on a subjective belief ; it was objectively supported by the memorandum
emanating from the College itself.
[57] The contents of this memorandum also corroborate the plain meaning and
evident purpose of Circulars 30 and 40, namely, to ensure the continuation of
the employment of lecturers falling within their scope until the completion of
the PPN process. This was material evidence which the commissioner failed
to consider in determining both the proper interpretation of the Circulars and
whether the applicant had acquired a reasonable expectation of continued
employment.
[58] In terms of section 188 of the LRA, once a dismissal has been established,
the employer bears the onus of proving that the dismissal was effected for a
fair reason and in accordance with a fair procedure.
[59] All three witnesses called by the College testified that student enrolment had
declined significantly and that, as a consequence, there was no longer
sufficient work for the applicant. The applicant disputed this evidence, albeit
only in general terms. However, because the commissioner found that no
dismissal had occurred, the question whether the College had established a
fair operational reason for terminating the applicant's employment was not
fully ventilated or determined at the arbitration.
[60] In those circumstances, the record before this Court is insufficient to
determine whether the College had established a substantively fair reason for
the applicant's dismissal based on its operational requirements. It would
therefore be inappropriate for this Court, sitting as a review court, to
determine that issue on an evidential record which was not fully developed
before the commissioner.
before the commissioner.
[61] However, if the true reason for the termination of the applicant's employment
was the College's operational requirements, arising from declining student
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enrolment and the consequent reduction in available work, the College was
required to follow the consultation process prescribed by section 189 of the
LRA. It is common cause that no such process was followed. Accordingly,
even if a substantively fair operational reason for the dismissal ultimately
existed, the dismissal could not have been procedurally fair in the absence of
compliance with section 189.
[62] During argument, the applicant's attorney, Mr Siebani, submitted that the
applicant sought either reinstatement or compensation. Given that the
College's operational requirements were not fully ventilated during the
arbitration, and that more than two and a half years have elapsed since the
applicant's dismissal, I am of the view that reinstatement would not be
appropriate in the circumstances. The most appropriate relief is therefore an
award of compensation.
[63] Having regard to the internal memorandum dated 12 January 2024, Circulars
30 and 40, and the applicant's own evidence that she expected her
employment to continue at least until 31 March 2024, I consider it just and
equitable that the compensation awarded should take account of the
remuneration she would have earned for the three- month period from 1
January to 31 March 2024.
[64] In addition, the College followed no fair procedure whatsoever before
terminating the applicant's employment. In particular, if the reason for the
termination was operational requirements, no consultation process as
contemplated in section 189 of the LRA was undertaken. I consider
compensation equivalent to a further four months' remuneration to be just and
equitable for the procedural unfairness of the dismissal.
[65] Accordingly, the applicant is awarded total compensation equivalent to seven
months' remuneration, calculated at the rate of remuneration applicable to her
immediately before her dismissal.
Order
[66] In the circumstances, the following order is made:
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1. The review application is granted.
2. The arbitration award issued by the Education Labour Relations
Council under case number ELRC812- 23/24GP is reviewed and set
aside.
3. The following award is substituted in its place:
3.1 The applicant’s dismissal was unfair.
3.2 The third respondent is ordered to pay the applicant 7 months’
salary.
4. There is no order as to costs.
—————————————
S. Swartz
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicant: Mr Siebani from Sebani Attorneys
For the Respondent: