Case Number: PSES 555-17/18NW
Applicant: Mr E.O. Ibeawuchi
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: North West Department of Education’s Regional Offices in Rustenburg
Award Date: 28 August 2018
Arbitrator: Diale Ntsoane
Case No: PSES 555-17/18NW
Date of Award: 28 August 2018
In the ARBITRATION between:
Mr E.O. Ibeawuchi
(Union / Applicant)
Department of Education – North West
Union/Applicant’s representative: In person
Union/Applicant’s address: P.O. Box 246
0196 Telephone: 073 343 6688
Respondent’s representative: Mr. T. Monkwe
Respondent’s address: Private Bag X275
Telephone: 018 387 4107
Telefax: 018 387 3028
DETAILS OF HEARING AND REPRESENTATION.
 The arbitration hearing was held under the auspices of Education Labour Relations Council (ELRC) on 12 February 2018, 07 May 2018, 11 June 2018 and 30 July 2018 at the North West Department of Education’s Regional Offices in Rustenburg. The applicant appeared in person whilst Mr. T. Monkwe, DESD, represented the respondent. The proceedings were recorded manually and electronically. Two bundles of documents were submitted as documentary evidence and they were marked bundles A and B. As the hearing progressed other documents were introduced and they were marked accordingly.
 It was agreed between the parties that closing arguments would be submitted on or before the 06 August 2018; and they were duly received.
 No preliminary points were raised at the outset of the hearing; however, as the hearing progressed a number of preliminary points were raised and they were dealt with as shown infra.
 The applicant commenced working for the respondent as a teacher on 13 August 2007 and his annual contract was not renewed when it expired on 31 December 2017. In April 2017 the respondent issued circular advising regions to appoint permanently teachers who were occupying vacant substantive positions. The applicant is challenging the respondent’s failure to appoint him permanently in terms of that circular.
ISSUE TO BE DECIDED.
 Whether or not the failure by the respondent to absorb the applicant permanently constituted misinterpretation or misapplication of collective agreement – section 24 (2) and (5) of the Labour Relations Act 66 of 1995 as Amended.
SURVEY OF EVIDENCE AND ARGUMENT.
Emmanuel Ibeawuchi’s testimony was that:
 The circular on page 42 of bundle A stated the conditions for absorbing educators. Paragraph 3.5 on page 43 of bundle A stated that foreign educators were excluded from absorption; but he was not a foreign national as contemplated in that paragraph because his immigration status allowed him to be employed in permanent capacity.
 Employment Services Act 4 of 2014 defined a foreign individual as not a South African citizen or did not have permanent residence permit issued in terms of the Immigration Act – Page 62 of bundle A. he had a permanent residence and identity document - page 1 and 2 of bundle A; so he was not a foreign educator as contemplated in that circular. Page 58 of bundle A was Immigration Act which stated that a permanent resident was a holder of a permanent residence permit, had all the rights, privileges, duties and obligations of a citizen; therefore he had a right to be employed permanently.
 The respondent knew that he was an educator that he had a permanent residence and could be appointed in a permanent capacity – page 71 of bundle A – as they argued in another case dealing with foreign nationals that no permanent appointment should be given to a foreigner unless that educator had obtained permanent residence in terms of immigration act – page 73 of bundle A
 In PSES 27-17/18GP the Commissioner explained that permanent residence qualified for permanent appointment unlike their foreign counter parts.
 The circular on page 42 of bundle A said the person to be absorbed ought to have minimum requirement and he had REQV 15; so he met the requirement. He had all his foreign acquired certificates evaluated by SAQA and he also had a Master’s degree from UNISA specialising in Mathematics education. He also had SACE registration – pages 3-6 of bundle A.
 The circular on which the absorption was based said the conversion of temporary teachers to permanent after they had served 24 months continuous service in vacant substantive posts; and he had 10 years plus service. Another condition for conversion into permanent appointment was that the educator ought to be occupying a substantive post in 2017; he was appointed into the substantive post from 2007 till 2017.
 It was because he was in a substantive post that he was appointed in permanent capacity in 2008 and it was to take effect from the date he started – page 9 of bundle A. In 2009 the department changed his permanent appointment again to temporary; and the explanation he got for that was he was not a South African and that he was not in possession of a permanent resident permit.
 The post he was occupying was a Dinaledi Post. On page 28 of bundle A the school wrote a letter asking that he be appointed and the area manager also wrote a letter asking for employment of foreign educators and his name was on the list – page 29 of bundle A. That post was permanent and he met all the conditions for him to be appointed / absorbed. When the absorption exercise was completed, he was not absorbed; but when he checked the Circular 21 of 017 and the Collective Agreement No. 1 of 2010 he realised that he was qualified. He asked the school management team (SMT) and they affirmed that he was on a vacant substantive post.
 The principal identified three educators who were on the temporary posts: Modiba, Dolo and Ludwick. Dolo and Modiba were substitutes on promotion. Dolo, accounting educator, was substituting the deputy principal (Ms. Aphane) who had resigned. Modiba, geography teacher, was substituting HOD, Mooke. The principal confirmed that he was on a substantive post and further said Dolo and Motha were absorbed. Dolo was the educator who was identified as a substitute on promotional post. The principal had already identified that there were two substantive posts – the one occupied by Motha and the one he (the applicant) was occupying.
 According to the Collective Agreement and the Circular, Dolo was not ought to have been absorbed on the post. When he asked the principal why they did it, she said the powers that be might have swapped him with Dolo; and if they did it; it was without his knowledge. He said he was surprised when his contract was not renewed despite the principal telling him in December 2017 that he would like to work with him; and that he should not take any job offers from other people; and when he did not get a call from the school, he made enquiries – page 82 of bundle A.
 He was surprised when he went to the department on 29 November 2017 to ask for his profile to prepare for his case when he noticed that they had written that his post was a substitute for a vacant promotional post – page 81 of bundle A. He said he thought the changes were made either during or after the absorption exercise. From the forms he filled it was clear that the post was substantive; and the school management team (SMT) would testify that he was on a substantive post. He said he considered the changes illegal manipulation to disadvantage him. The post he was appointed was 000018 which was a substantive post – page 23 of bundle A - and not post 000007.
Marvin Madisa’s testimony was that:
 They had the applicant, Modiba, Chauke and Ludick as temporary educators in their school in 2017. They also had Dolo and Motha. They had two promotional posts that were vacant – deputy principal and HOD. They identified the vacant post and submitted them to the district office so it was difficult to say which educator was appointed to fill which post. One could fill one form for all the educators or each temporary educator would fill their own forms. As soon as they filled in the form and sent it to the department, they waited for approval.
 Page 28 of bundle A was the letter he wrote to the circuit manager recommending the applicant’s appointment. Page 29 of bundle A was the list of foreign educators they appointed in 2017. At the level of school, he would submit the list of their needs to the department and they would approve; he could not prescribe to the department who to appoint in which post. He said he did not know whether the applicant was appointed in a temporary promotional post or not. He said SMT did meet with the applicant and he did not ask for the names of educators who were on temporary substantive and promotional posts.
Application to introduce documentary evidence – tape recording.
The applicant brought an application to play a tape recording; and the application was opposed. After listening to the parties’ submissions; I made a ruling that it should be played; and it was played.
 After the recording was played and examination in chief proceeded, the applicant brought an application for the witness to be declared hostile; and the application was granted. The applicant then cross-examined the witness.
Reuben Maleka’s testimony was that:
 In the meeting with SMT in 2017 Moloto and the principal were nominated to come and testify that the applicant was in a substantive post. When appointing a temporary educator they first identified the needs of the school and then completed annexure forms requesting approval. Approval and rejection came from Head Office and not area office. They could not change the recommendation so there was no way they could swap the names; they either approve it or reject it. Page 40 of bundle A was a similar form they completed for the applicant and the school recommended the applicant. He said he thought it was approved because the applicant was appointed to serve. The person who verified the applicant’s appointment was Ms. Molefe who was human resources assistant.
 He said the applicant had been occupying the Dinaledi Post since he joined the department in 2009 and that he remembered he was at one stage appointed permanently but that appointment was reversed because he did not have permanent residence. Since 2009 the applicant had been serving under Dinaledi Post number 000018.
 The non-RSA referred to on page 37 of bundle A and the post number 000018 on the same page referred to the applicant. Even Annexure D on page 40 of bundle A referred to non-RSA. The same was said on page 24 of bundle A; the same post number in page 23 of bundle A. The post number 000018 Dinaledi Post. The applicant had been occupying a substantive post ever since he joined the school. Dinaldi Posts were strictly for Maths and Science educators.
 Before absorption could take place the area manager called and asked all the principals to come and confirm their temporary posts. When the gazette for promotional posts came out, Dolo was informed that his contract was coming to an end because he was occupying a promotional post. Dolo was even offered a permanent post in Attridgeville where he worked for two weeks; but he returned when they came back from school holidays in September 2017.
 It was discussed in the SMT meeting and Dolo was informed that his contract would come to an end on 31 October 2017. He said while he was acting principal the applicant’s contract would run from January to December. There was no need for the applicant’s post to come to an end in June 2017; because all the Dinaledi Posts were from January to December.
 It came as a surprise when Dolo, who was not on substantive post, was absorbed. That went against the circular that said only educators on substantive posts ought to be considered for absorption. He said it seemed to him that the post numbers were swapped because post number 000007 was occupied by Dolo. He said if one looked at page 39 of bundle A Dolo was occupying post number 000007 and the applicant was occupying post number 000018; so it was impossible for two people to occupy two posts.
 The document on page 12 of bundle B was printed on 31 January 2018, long after the absorption had been completed. The applicant was removed from Dinaledi Post after absorption; and he thought the applicant was then moved to post 000007 which was previously occupied by Dolo. The applicant was at the school until the last day of the year; i. e December 2017.
 He said he never heard the principal saying the applicant’s contract was renewed in July 2017; and if it was terminated in June 30 2017 as page 10 of bundle B suggested, his salary could have been terminated. The two educators who were on substitute posts were Motha and the applicant and they were on Dinaledi Posts.
 He said according to the documents Dolo was absorbed on post 000018; so that was the reason he was saying something was not right.
Application to introduce documentary evidence.
 After listening to the parties’ submissions; I ruled that the document should not be used.
Lucas Moloto’s testimony was that:
 During the meeting with the applicant at the school he and the principal were nominated to come and represent the school by coming to testify that the applicant was appointed in a substantive post and not a substitute post. If the principal said the applicant was not in a substantive post he was not telling the truth. They had educators who were also temporary. Mr. Chauke was replacing Connie; Mr. Dolo was replacing Ms. Aphane, who was part of SMT before she resigned. Ludick was replacing Ms. Ndimande who was on sick leave.
 The HOD of humanities, Mr. Mooke, was also replaced by Mr. Modiba. Ms. Motha was in a substantive post. Ms. Aphane was teaching accounting; and Dolo, who replaced her, was also teaching accounting. Mooke was teaching geography and was replaced by Modiba, who was also teaching Geography. The applicant was not replacing anybody.
 The form on page 4 of bundle A was filled for the applicant recommending him to fill a substantive post. Page 37 of bundle A was the post establishment and it talked about appointing on temporary basis a non-RSA into post number 000018. Page 41 of bundle A was the recommendations made to the district for the applicant’s appointment; and he was appointed. The letter on page 29 of bundle A was from the area office requesting employment of foreign educators in scarce subjects.
 Page 81 of bundle A was dated after absorption; he said the applicant was appointed in a vacant promotional post. Page 43 paragraph 3.5 of bundle A stated that the applicant could not be absorbed since he was a foreigner as explained on page 29 of bundle A. Paragraph 4.3 of page 43 of bundle A stated that those who had completed 24 months as at 30 April 2017 would be identified for placement in vacant substantive posts. That explained why Dolo was absorbed on the applicant’s post, and the applicant relegated to a temporary substitute post because as a foreigner the applicant was not eligible for absorption.
 Employment Services Act 4 of 2014 defined a foreign national as an individual who was not a South African citizen or did not have a permanent residence permit issued in terms of Immigration Act. He said he did not think the department was right in not absorbing the applicant on the basis of that he was a foreigner because he had a permanent residence permit. The department was wrong in absorbing Dolo who was on a substantive post.
 After the departure of Ms. Aphane the school had a problem with Accounting and Dolo was appointed as a temporary to replace her. It was later announced that from the 01st September 2017 Dolo would be joining Dr. Nkomo High School in Attridgeville because the post he was occupying was advertised on promotional list.
 The applicant’s contract ended when the schools closed in December 2017. The applicant was not terminated on 30 June 2017 as stated on page 10 of bundle B and there was no application for his appointment in July 2017. Page 43 of bundle A was signed on 30 June 2017 and the department alleged his contract terminated on 30 June 2017 which was false. He said he did not agree with the termination date as stated on page 10 of bundle A.
 He said the applicant was occupying Dinaledi vacant substantive post in 2017 and before (from 2007) and that was also qualified by human resources in 2016 when they recommended for his appointment. Dolo was an Accounting teacher and not a Maths and Science teacher.
Daniel Mhlongo’s testimony was that:
 Before the absorption of temporary educators they had two substantive posts occupied by Ms. Motha and the applicant. Dolo was occupying the deputy principal’s post (that of Ms. Aphane who had resigned); Ludick occupied Ndimande’s post, who was sick. Modiba occupied HOD Mooke’s post, who had resigned. The applicant and Motha were occupying Dinaledi posts. Chauke was occupying SSE post. He said it was not possible to appoint a teacher in a post without engaging him before he signed the contract and agreeing to the terms of the contract; so it was not true that the principal did not know what post Dolo was in. It was never discussed that the applicant would be appointed as a substitute for anybody. The applicant was in a Dinaledi post that was renewed every year.
 He said he was an HOD in the department Dolo was hired and the deputy principal resigned; and the post was advertised. Dolo was appointed as a substitute for Ms. Aphane to teach Accounting grade 12. The deputy principal (Ms. Aphane) was teaching Accounting. As the HOD he gave candidates for the Accounting post a test to write; and Dolo came out tops. He recommended Dolo for appointment; and he was appointed.
 In 2017 they still did not have an Accounting teacher and Dolo was hired to continue teaching Accounting. Dolo was still hired as a substitute for Ms. Aphane in 2017. Dolo was informed in September 2017 that his serves were going to be terminated after the appointment of a deputy principal. The deputy principal was supposed to be appointed in September 2017 but he was appointed in December 2017. Dolo left in September 2017 and went to Attridgeville.
 After the learners wrote preparatory examinations in September 2017 he (the witness) marked their scripts and was reimbursed for it because he was not teaching the subject.
 The applicant was having a permanent residence and the identity document of RSA; and as such he should not have been regarded as a foreigner in pages 28 and 29 of bundle A. The applicant was perceived as a foreigner even though he had permanent residence.
 The applicant was occupying post 000018 - post 004 of the Dinaledi post – page 39 of bundle A. The other two people who were also on the Dinaledi post with the applicant were Matli and Onyejiuma. The later two were appointed permanently (absorbed) – page 39 of bundle A.
 Page 1 of bundle A was the applicant’s identity document and page 2 of bundle A was his permanent residence permit. Paragraph 4.8 of the Collective Agreement No.1 of 2010 provided that those in substantive posts for 24 months or more continuous service would be made permanent; and paragraph 4.9 of the Collective Agreement said those educators should be qualified REQV 13 and also be in a funded substantive post for them to be made permanent. The applicant qualified to be absorbed because he had been temporary for more than 24 months, he had permanent residence and RSA identity document. He said he thought the applicant was not absorbed because the department perceived him as a foreigner; even though he qualified. From 2007 the applicant was never out of service for more than 120 days.
 He said when he compared Dolo’s sub-component on page 86 and 39 of bundle A he noticed that they took the applicant’s post number and gave it to Dolo and that made him eligible for absorption. Dolo’s sub-component in 2016 was 000007 – page 39 of bundle A. The applicant’s sub-component after absorption was 000007 substitute for vacant promotional post – which is the post that was held by Dolo before absorption – page 81 of bundle A. Post 000018 was a Dinaledi post – Maths and Science – and Dolo was not a Maths and Science teacher. The applicant’s post was based on substantive vacant post – page 40 of bundle A There was no other contract that the applicant signed with the school or department apart from the one on page 40 of bundle A. The contract on page 40 of bundle A was approved because if it was not; the applicant could not have started to work.
 The applicant’s contract was terminated on 31 December 2017 - page 83 of bundle A. Termination on page 10 of bundle B was 30 June 2017; which he did not agree with because the applicant stayed at the school until December 2017; and was receiving salary from July to December 2017. The system captured even a short break of two months as it happened in 2016 – page 83 of bundle A.
Joel Tshekedi Mogatushi’s testimony was that:
 He was a Deputy-Director: Human Resources; and his responsibilities were supervising three divisions. Some documents that were submitted to the department for approval come via his office. The purpose of the document on page 40 of bundle A which was called Annexure D was to appoint temporary educators. Once the document was submitted they took it to the district director for approval. If the educator was a non - RSA it was taken to the chief director for approval. The chief director: HR approved non-RSA educator Annexure D forms would be taken to the chief director: HR. If the educator is South African approval is done by district director. After the school had submitted page 40 of bundle A to human resources, he (the witness) would come after Ms. Molefe, assistant HR, had signed – page 41 of bundle A – and on the particular application he did not sign.
 Page 26 of bundle A Shole M.P was acting in the absence of Ms. Molefe, district director, Seshibe and the last person who signed on behalf of chief director was D.M Ngwenya. Pages 25, 26 and 27 of bundle A was fully attended to whereas the application on page 40 and 41 of bundle A was incomplete because it did not have the signature of the district director and chief director. If the application did not have the signature of the district director and the chief director, it was not approved. Since the application on pages 40 and 41 of bundle A was not approved, Dolo was appointed.
 In 2017 the applicant was occupying a temporary post; he was a substitute against a promotional post with effect from February 23, 2017 – page 12 of bundle B. As per documents submitted it was indicated that the applicant was appointed against a promotional post.
 Collective Agreement No. 1 of 2010 was to be implemented around July of every year as per 4.7 read with 4.10 on page 17 of bundle B. The requirements were: 24 months unbroken service as an educator, REQV 13, the person should be in a vacant substantive post. Around April 2017 they started with the process and those who qualified were converted in July 2017. The applicant, at the time the process started in April 2017, was
against a promotional post. The applicant was not converted because the post he was occupying was a vacant promotional post; they could only convert those who were in vacant substantive posts.
 The circular on page 42 of bundle A was addressing the vacancy that was already in existence, was for people who were already in the system. The once off conversion simply meant that the process only to be done in 2017; so that one was not looking at 24 months service; for so long as one was in a vacant substantive post one was eligible for conversion.
ANALYSIS OF EVIDENCE AND ARGUMENT.
 It is common cause that the applicant had been working for the Department of Education North West on a renewable contract for almost 10 years. It is further common cause that he completed forms to renew his contract in January 2017. It is further common cause that the applicant had been teaching Mathematics and Science ever since he joined the department in 2007. It is further common that Collective Agreement No.1 of 2010 provides for the conversion of temporary educators to be appointed permanently. It is further common cause that Circular No. 21 of 2017 was issued in 2017 and it provided for once conversion of temporary educators to be appointed permanently. It is further common cause that Mr. Dolo and other teachers were absorbed or appointed permanently and the applicant was not.
 The applicant contended that the respondent interpreted Collective Agreement No. 1 of 2010 and Circular No. 21 of 2017 incorrectly or failed to apply it. The applicant argued that he met all the requirements stipulated in the collective agreement and the circular and that the reason for his non-absorption was because the respondent perceived him as a foreigner or non-RSA. He further argued that somebody in the department of education swapped him with Dolo to make Dolo qualify for absorption.
 The respondent, on the other hand, contended that it interpreted and applied the circular correctly. The respondent argued that the applicant was not occupying a substantive vacant position at the time the absorption was implemented. The respondent further argued that although both the applicant and Dolo applied for renewal of their contracts for 2017, Dolo’s appointment was confirmed before that of the applicant and that was the reason why Dolo had been appointed into the vacant substantive post – post number 000018.
 Item 3 of Circular No. 21 of 2017 provides that:
“Given the challenges related to the re-appointment of temporary teachers at the beginning of each year, the Department has resolved as follows:
“3.1. Professionally qualified temporary teachers in substantive posts as at 30 April 2017 be converted once off to permanent in terms of section 6B of the Employment of Educators Act 76 of 1998.
3.2 Under qualified educators (REQV 10, 11 &12) in substantive posts will not be converted to permanent.
3.3 temporary teachers who are not in substantive posts are not included in this once off conversion to permanent.
3.4 Temporary teachers who are not in vacant substantive posts but have continuous service of 24 months as at 30 April 2017 will be identified for placement in vacant substantive posts.
3.5 Foreign educators are not included in this once off conversion to permanent as per applicable legislation”.
 As of 12 December 2016 the applicant occupied post number 000018 which was a vacant substantive post and Dolo occupied post number 000007 which was a vacant promotional post. The applicant and Dolo applied for renewal of their contracts at the beginning of the year (2017) and were duly appointed. When the absorption process was concluded, the applicant discovered that he was not absorbed and on further investigation he discovered that Dolo was absorbed into post number 000018 – the vacant substantive post he occupied for a number of years and for which he applied for renewal.
 The applicant argued that he had been occupying post number 000018 ever since he joined the school in 2007 and that when his contract was renewed in 2017 he was appointed in that post. To support his argument he referred to pages 40 and 41 of bundle A and argued that the assistant human resources practitioner, Ms. Molefe, recommended his appointment in that position.
 Page 20 of bundled B shows that Dolo’s approval for appointment was signed on 04 February 2017, whereas the applicant’s approval was signed on 23 February 2017. The respondent argued that Dolo was appointed into post 000018 – vacant substantive post – because the applicant’s application was not yet approved at the time. The respondent further argued that to show that the applicant’s appointment was not approved, the applicant failed to provide page 3 of Annexure D on pages 40 and 41 of bundle A – which would have the signature of the chief director as proof that his appointment was approved. The respondent further argued that appointment of non-SA was approved by the chief director. According to pages 81 and 20 of bundles A and B respectively, the applicant’s appointment was authorised on 23 February 2017 whereas Dolo’s was authorised on 04 February 2017.
 Page 40 of bundle A does not have a post number, so there is no way one can identify which post the applicant applied and was recommended for. Page 41 of bundle A is recommendations by various officials – circuit manager, area manager and the HR assistant. The most important page – approval – is missing and I asked the parties on numerous occasions to please provide me with it, but to no avail. The third page of Annexure D on page 40 and 41 of bundle A would shed light on whether the appointment of the applicant was approved by the chief director or not; and if it was into which post – vacant promotional post or vacant substantive post. Page 3 of Annexure of page 40 and 41 of bundle A would help us understand whether the appointment of the applicant was in line with the recommendations of the circuit manager, area manager and the assistant human resources who recommended that he be appoint in the vacant substantive post.
 In the absence of proof that the chief director appointed him into post number 000018; page 12 of bundle B is undisputed evidence that the applicant was - at the time of the absorption – occupying a vacant promotional post. The applicant was able to submit as proof of his appointment in 2016 all the pages of Annexure D with the signature of the district director and chief director – page 27 of bundle A - but failed to do the same for the crucial appointment in 2017.
 Without the approval of the appointing chief director the applicant’s argument that pages 40 and 41 of bundle A is proof that he was appointed into a vacant substantive post is misleading. There is no proof that the recommendations on pages 40 and 41 of bundle A resulted in approval and appointment in post number 000018 – vacant substantive post. The respondent’s argument that Dolo was given post 000018 because he was the first to be appointed is convincing. There is no proof that the applicant was appointed in post 000018 and Dolo was appointed in post number 000007; and that the two positions were later swapped.
 The documents on page 12 of bundle B, page 81 of bundle A and page 20 of bundle B prove that the applicant was occupying a vacant promotional post and Dolo was occupying a vacant substantive post. In light of this evidence on pages 81 and 20 of bundle A, the applicant was ineligible for absorption or conversion to permanent appointment because he failed to meet the requirements of item 3.1 of the Circular 21 of 2017 read with Collective Agreement No. 1 of 2010.
 At some point the applicant asserted that the reason why he was not absorbed was because he was a foreign national or a non-RSA. This argument has no basis because the applicant has permanent residence and a South African identity document and all these documents are in the respondent’s possession. So there is no way that the respondent could have continued to regard him as a non-RSA. The argument that the respondent perceived him as a non-RSA is misplaced.
 It follows that the applicant has failed to prove, on the balance of probabilities, that the respondent misinterpreted or misapplied Collective Agreement No. 1 of 2010 and Circular No. 21 of 2017.
 The application is dismissed and no order is made as to costs.