Case Number: PSES619-19/20NW
Province: North West
Applicant: NAPTOSA OBO THLOLOE, L C S
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education and Sport North West, 30 Van Velden Road, Brits.
Award Date: 13 December 2019
Arbitrator: D Smith
Commissioner: D Smith
Case No.: PSES619-19/20NW
Date of Award: 13 December 2019
In the ARBITRATION between:
NAPTOSA OBO THLOLOE, L C S
(Union / Applicant
DEPARTMENT OF EDUCATION NORTH WEST
Union/Applicant’s representative: Mr. Stephen Phaladi
Respondent’s representative: Mr. Martin Keetile
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 186(1)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as the “LRA”). The matter was scheduled for Arbitration on 9 December 2019 at the Department of Education and Sport North West, 30 Van Velden Road, Brits.
2. The Applicant, Mr. Leseyane Cyril Samuel Thloloe (“Thloloe”) was represented by Mr. Stephan Phaladi (“Phaladi”), an official of the trade union NAPTOSA. The Respondent was represented Mr. Martin Keetile (“Keetile”), its SES: Disputes.
3. The process was digitally recorded, and I took handwritten notes.
ISSUE TO BE DECIDED:
4. The interpretation and application, in terms of Section of the LRA, of Collective Agreement 4 of 2018 (“Collective Agreement”) as to whether its provisions in respect of the conversion of temporary educators to permanent applies to Thloloe.
5. If I find in the positive, I must decide upon an appropriate remedy.
6. Thloloe was employed as a temporary educator on a limited duration contract (“LDC”) on 1 April 2018 with an end date of 31 December 2018. During 2018 the parties to the Council concluded Collective Agreement 4 of 2018 (“Collective Agreement”) titled: “The appointment and conversion of temporary educators to posts on the educator establishment”, dated 25 September 2018, A81-91. There was some delay in the implementation of the agreement and it finally came into effect on 1 August 2019. Temporary educators were then absorbed as permanent employees of the Respondent. Thloloe was, at that time, no longer an employee and was not absorbed.
7. The parties conducted a pre-arbitration meeting on 1 November 2019, the minute of which appears at A1-3.
8. Thloloe submitted a 91-page bundle of documents marked “A”.
9. Thloloe sought that the Collective Agreement 4 of 2018 to be interpreted as applying to him and that he be converted to a permanent educator.
SURVEY OF EVIDENCE AND ARGUMENT:
10. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
11. Most of the evidence was common cause.
12. Phaladi submitted that because the Collective Agreement was concluded during the currency of Thloloe’s LDC, on 25 September 2018, it applied to him and the Respondent was required to convert him to a permanent educator and not terminate the LDC as they did.
13. Keetile submitted that Thloloe’s LDC came to an end prior to the implementation of the Collective Agreement. Consequently, there was no employment relationship when the Collective Agreement was implemented on 1 August 2019. Thloloe was not part of the process as he was no longer employed.
ANALYSIS OF EVIDENCE AND ARGUMENT:
14. It is common cause that Thloloe was employed as a temporary educator on an LDC with an end date of 31 December 2019 and that the employment relationship between him and the Respondent came to end on that date, in accordance with that contract. The fairness or otherwise of the termination does not form part of this dispute. Had he still been in the Respondent’s employ on 1 August 2019 he would, likely, have been converted to a permanent educator.
15. It is also common cause that Collective Agreement 4 of 2018 was concluded on 25 September 2018.
16. The Collective Agreement would apply to Thloloe for the period 25 September to 31 December 2018, only.
17. Phaladi referred me to the Collective Agreement where it sets out the conversion procedures to be followed in clause 4.4. At 4.5 it deals with: “Non-favorable Treatment”, stating:
“Subject to the provisions of this collective agreement and section 6B of the EEA no educator shall be treated by provincial education Department less favorable than the others, in the conversion process of temporary appointment to a permanent appointment, unless there is an objective justifiable reason for such different treatment (sic)”.
18. At 4.6.3 the Collective Agreement states:
“Temporary educators whose contracts have not expired as the date of implementation of this agreement shall be considered for conversion to permanent educators in terms of this agreement”.
Thloloe’s contract expired after the date of the Collective Agreement but prior to its implementation on 1 August 2019.
19. The “Scope and application of this agreement” is dealt with in clause 2. and states:
“All employees of the employer as defined in the Employment of Educators act 76 of 1998, whether such employees are members of trade union parties to this agreement or not (sic)“.
At the time of implementation Thloloe was no longer an employee.
20. As Thloloe was not employed at the time of the implementation of the Collective Agreement its provisions cannot apply to him and cannot, by implication, resurrect the employment relationship.
21. The provisions of the Collective Agreement do not apply to the Applicant, Leseyane Cyril Samuel Thloloe.
22. The matter is, therefore, dismissed.
D H Smith
13 December 2019