Case Number: PSES669-19/20NW
Province: North West
Applicant: SAOU OBO OLOVIER C & DU PLESSIS M
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Refusal to Re-instate i.t.o an agreement
Award Date: 12 March 2020
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: PSES669-19/20NW
Dates of Hearing: 17 February 2020
Heads of Arguments: 19 February 2020
Date of Award: 12 March 2020
In the Arbitration Hearing between
SAOU OBO OLOVIER C & DU PLESSIS M APPLICANTS
DEPARTMENT OF EDUCATION – NORTH WEST RESPONDENT
Mr Piet Delport
Tel: 063 014 3004 / 083 494 7711 / 072 325 2622
E-Mail Address: firstname.lastname@example.org
Respondent’s representative: Mr Martin Keetile
Telephone: 0148 388 4108
E-Mail Address: email@example.com
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award issued in terms of section 138(7) of the Labour Relations Act 66 of 1995 ("the LRA"), as amended for the alleged unfair labour practice dispute referred to the Education Labour Relations Council ("the Council") on 30 October 2019.
2. The dispute was arbitrated on 17 February 2020 at Department’s Offices in Klerksdorp, Alabama. Mr Piet Delport (“Delport”), an official from SAOU, represented the applicants, Messrs Cecilia Olivier (“Olivier”) and Minke du Plessis (“du Plessis”). Mr Martin Keetile (“Keetile”), the ER Practitioner, represented the respondent, Department of Education – North West.
3. The parties submitted bundles of documents and the content thereof was not disputed. The applicants’ bundle was marked as Bundle A and the respondent’s bundle was marked Bundle R. The parties agreed to submit their heads of arguments in writing on or before 19 February 2019. Both parties complied with the submission date. The proceedings were digitally recorded and the recording thereof was retained by the Council.
ISSUES TO BE DECIDED
4. I am enjoined in these proceedings to determine whether the respondent has subjected the applicants to an unfair labour practice by failing to convert them to permanent posts as per the provisions of Collective Agreement 4 of 2018.
5. This dispute relates to an alleged unfair labour practice (benefits) in terms of section 186(2)(a) of the LRA. The applicants are relying on the provisions of Collective Agreement 4 of 2018 (“the CA”) with particular reference to Item 4.2. Both the applicants were in temporary posts when the CA was signed on 2225 September 2018.
6. The respondent was of the view that the applicants did not qualify for the conversion into permanent post and relied on Circular no 25 of 2019 dealing with the implementation of the CA.
SUMMARY OF EVIDENCE AND ARGUMENTS
The applicants’ case
7. Olivier stated under oath that page 1 of Bundle A was her service record and that as per her service record, she was employed by the Department when the CA was signed until 31 December 2018. She then was employed in a SGB post from January 2019 to 22 April 2019. She was again employed by the Department from 22 April 2019 to 31 December 2019. She stated that she was in a temporary post twice and each occasion she worked for over three months. She further stated that she qualified for the conversion because she has a qualification from the University of North West (“NWU”) and she was also registered with SACE.
8. Under cross-examination she stated that she understood how the CA interpretation and implementation worked. When referred to page 2 par. 4 of Bundle R, she stated that she was employed for over three months with the Department and she was supposed to have been converted on 17 January 2019. She confirmed that she was not on a vacant and substantive post. She further confirmed that she has never been employed on a substantive PL1 post since January 2019.
9. Du Plessis stated under oath that she was working for the Department on 25 September 2018 in a temporary post and from January 2019, the school principal told her that she would be paid by the SGB. She testified that she has a qualification from NWU and she also registered with SACE, but the school principal told her that there were educators that were more qualified than her.
10. Under cross-examination she stated that she understood that if the implementation date of the CA was 01 July 2019, then it would mean that she did not qualify for the conversion. Further agreed that she did not qualify for conversion since was not on a vacant and substantive post.
11. I do not intend to repeat the parties’ closing arguments as they are a matter of record. However, they were fully considered and I will refer to the closing arguments in my analysis hereunder where necessary.
ANALYSIS OF EVIDENCE AND ARGUMENTS
12. Section 138(7) of the LRA requires a commissioner to issue an award with brief reasons. As such, I am only dealing the salient points of the submissions in this award.
13. First and foremost, I agree with Delport on his closing arguments that the Departmental Circular cannot trump or alter a CA. The factual matrix of this dispute centers around the conversion of the applicants from temporary posts to permanent posts as prescribed in Clause 4.2 of CA 4 of 2018. It is common cause that the CA was signed on 25 September 2018. It is common cause that at the time of the signing of the CA, both the applicants were on temporary posts and were remunerated by the Department.
14. In essence, Clause 4.2 of the CA amends Chapter B of the PAM and it is amended by Annexure A to the CA. Clause 4.2 of Annexure A is headed: Eligibility of Conversion. This clause reads thus:
4.2.1. A temporary educator may only be appointed permanently to funded, substantive and vacant level 1 post in a public school which is on the approved educator establishment if: (own emphasis)
220.127.116.11. The temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of the conversion;
18.104.22.168. The temporary educator qualifies for the post in question;
22.214.171.124. The temporary educator is registered with South African Council of Educators (SACE); and (own emphasis)
126.96.36.199. The temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person as contemplated in the Immigration Act 13 of 2002 as amended and section 10 of the Public Services Act, 1994 (Proclamation No. 103 of 1994), as amended.
15. The purposive interpretation of this clause, because of the word ‘and’ before the last sub-clause, would mean that all these conditions must be met before the educator would be eligible for conversion. In this case, the applicants were both employed in temporary capacities until December 2018 and following Clause 4.2 of the CA, the applicants met all the criteria for conversion to permanent positions at that time.
16. However, one cannot overlook the fact that there was no implementation procedure in place to ensure that there were no administrative glitches. Hence, Circular 25 of 2019. In terms of this Circular, the implementation date of the CA was 01 July 2019. Both the applicants at the implementation date did not meet all the criteria that are set out in Clause 4.2 of the CA. Olivier was appointed against a promotional posts and Olivier was appointed by the SGB. Now, when one reads Clause 4 of the Circular, it is clear that the applicants could not be converted because at the implementation date the applicants were not employed in a temporary capacity for a continuous period of at least three months. Du Plessis conceded under cross-examination that she did not qualify for conversion.
17. There was no evidence adduced before me that a party to the CA has objected to the implementation date of the Circular. Then it follows that the parties were in agreement with the implementation date of 01 July 2019. Consequently, I find that the respondent did not subject the applicants to any unfair labour practice as the applicants alleged.
18. The applicants did not succeed to discharge their burden of proof that the respondent subjected them to an unfair labour practice.
19. The Council is directed to close this case file accordingly.
Arbitrator: Themba Manganyi