Case Number: ELRC53-20/21NC
Province: Northern Cape
Applicant: SAOU obo Van den Heever, Chris
Respondent: Northern Cape Department of Education
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: via Zoom Meetings
Award Date: 8 December 2020
Arbitrator: George Georghiades
Commissioner: George Georghiades
Case No.: ELRC53-20/21NC
Date of Award: 08 December 2020
In the ARBITRATION between:
SAOU obo Van den Heever, Chris
(Union / Applicant)
Northern Cape Department of Education
Union/Applicant’s representative: Ms. Lize-Mari Mazzoncini
Union/Applicant’s address: 10 Milner Street, Memorial Road Area
Telephone: 012 023 1333
Mobile: 076 941 3943
Telefax: 053 832 2460
Respondent’s representative: Mr. Paul Muller
Respondent’s address: Kheis Methodist Primary School
C/O Northern Cape Department of Education
PO Box 57
Telephone: 053 839 6500
Facsimile: 053 839 6580
Email: MeaganvdHeever@ncdoe.gov.za or firstname.lastname@example.org
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing between SAOU obo Van den Heever, Chris and the Northern Cape Department of Education was held under the auspices of the Education Labour Relation Council (“ELRC”), via Zoom Meetings. The matter was set down for arbitration on 04 December 2020, as referred in terms of section 24(2), of the Labour Relations Act 66 of 1995, as amended (LRA), the nature of the dispute being the interpretation and application of Collective Agreement 4 of 2018, specifically subsection 4.2 of the annexure that regulates the eligibility for conversion.
2. The proceedings were conducted in English and were manually and digitally (video and audio) recorded.
3. The applicant was represented by Ms. Lize-Mari Mazzoncini, trade union representative of the South African Teachers Union (SAOU), while the respondent was represented by Mr. Paul Muller, acting Labour Relations Officer in the Labour Relations Unit of the Northern Cape Department of Education. The parties submitted their evidence bundles upon which they intended relying upon to the panellist via email, copying the opposing party prior to the commencement of the arbitration proceedings. The respondent submitted its bundle of documents which was marked as bundle “R” and the applicant submitted its bundle, which was marked as bundle “A”. I downloaded the ELRC’s Collective Agreement 4 of 2018 and the pre-arbitration minutes of the meeting held virtually between the parties on 29 September 2020, which was marked as bundle “C”.
4. No preliminary issues were raised by the parties.
ISSUES TO BE DECIDED
5. This matter is brought in terms of section 24(2), of the Labour Relations Act 66 of 1995, as amended (LRA) and relates to the interpretation and application of a collective agreement. It is the applicant’s case that the respondent incorrectly interpreted and applied clause 4.2 of the annexure of Collective Agreement 04 of 2018 (“the Agreement”).
6. I am tasked to interpret clause 4.2 of the annexure of the Agreement, and should relief be required, to order the appropriate relief.
BACKGROUND TO THE DISPUTE
7. The applicant, Mr. van den Heever, was employed as a temporary educator at Kleinzee Centre for Learning until the 31 December 2018, when his contract expired. He then commenced employment with the respondent for the 2019 school year as an educator on a temporary basis at Kheis Methodist Primary School, Garies.
8. In accordance with Collective Agreement 4 of 2018, the School Governing Body (“SGB”) of Kheis Methodist Primary School applied to the respondent for the applicant to be converted from a temporary educator to a permanent educator.
9. The applicant contacted the SAOU in February 2020, requesting assistance in respect of the status of the progress of his application for conversion to a permanent educator. After several failed attempts to obtain feedback from the respondent, the SAOU lodged a grievance with the respondent on behalf of the applicant on 19 May 2020.
10. In line with the respondent’s grievance procedures, a response to the grievance lodged was expected by 25 June 2020. Upon no response being received from the respondent, the SAOU lodged a dispute on behalf of the applicant with the ELRC.
11. The respondent disputed this, submitting that during December 2019, Mr. van den Heever lodged an inquiry with his circuit manager, who, together with a HR official at the department, Mr. Rodger Jantjies, explained to him that he did not qualify to be converted, because he was not occupying a funded, substantive and vacant post. It was explained that there were no post-level 1 posts vacant at Kheis Methodist Primary School, with the only vacancy being a promotional post-level 2 post. Mr. van den Heever accepted this explanation. This explanation to the applicant confirmed that his inquiry in respect of the conversion, was addressed satisfactorily.
12. As the matter referred to the ELRC by the applicant relates to the interpretation and application of a collective agreement, the onus of proof rests upon the applicant for this claim to succeed.
13. Both the applicant’s representative and the respondent’s representative led evidence relying on documents only, to prove their respective cases. Both parties confirmed that they would not be calling any witnesses and that they would rely completely on the bundles submitted.
13. Upon the conclusion of their submissions, both parties were requested to address me in respect of their closing arguments. Both parties did so in writing, and I have considered these in my award below.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant’s representative, Ms. Lize-Mari Mazzoncini, testified that:
14. Mr. van den Heever was appointed at Kheis Methodist Primary School as a temporary educator, his nature of appointment being aligned to appointment code 26, being that of a post-level 1 educator post. If Mr. van den Heever had been appointed against an appointment code 28 that would have implied that his appointment was made against a principle’s post, and his appointment would have been that of a substitute teacher, as this post (principal) was vacant. This was not the case.
15. In line with the provisions provided in the Northern Cape Department of Education’s 2019 Educator Staff Establishments policy, Kheis Methodist Primary School qualified for one post-level 2 post, being a principal’s post and three post-level 1 posts.
16. Two of the post-level 1 posts were occupied by a Mrs. Beukes and Mrs. Willemse respectively, both of whom were permanent educators. The third available post-level 1 post was a vacant, substantive funded post.
17. As the school did not have a principal at the start of the 2019 academic year, due to the resignation of the previous principal, Mrs. Beukes was appointed to act in that position, leaving her permanent post-level 1 post vacant for a substitute teacher. As indicated by the applicant’s code 26 nature of appointment, he was appointed against the only vacant and substantive post-level 1 post.
18. The applicant was never appointed as a substitute teacher to fill Mrs. Beukes’ vacant post-level 1 teaching post. As he was not remunerated in line with a code 28 nature of appointment, being that of a principal, he cannot further have been appointed against the principal’s post, which was filled by Mrs. Beukes.
19. On 10 April 2019, the school received a letter from the Acting District Director of the Namakwa district, Mr. PTA Cloete, wherein the applicant was identified for conversion from a temporary appointment to a permanent appointment, in line with the provisions of section 6B of the Employment of Educators Act 76 of 1998 and in terms of the requirements of Collective Agreement 4 of 2018.
20. Subsection 4.2 of the annexure to the Collective Agreement 4 of 2018 lists the requirements of eligibility for conversion from a temporary educator to that of a permanent educator. Mr. van den Heever met all the requirements for eligibility to be converted to a permanent educator.
21. In accordance with the contents of the letter submitted to the school by the Acting District Director, the SGB confirmed the applicant’s eligibility for conversion and submitted a letter to the department, recommending the department’s consideration in respect of the conversion of the applicant from a temporary to a permanent educator.
22. Despite the SGB’s recommendation that the applicant was eligible for conversion and the applicant met the requirements for conversion to a permanent educator, the respondent did not raise any objection to this. The South African Schools Act 84 of 1996 empowers the SGB to ensure that democratic processes are conducted at schools and is responsible for the ensuring of sound governance of schools to carry out the aims of the Act.
23. Section 20(1)(a) and (l) bestows the SGB with the authority to recommend educators to the Head of Department for appointment in the interest of the school and to promote quality of education for all learners.
24. The applicant is appropriately qualified and registered with the South African Council for Educators.(SACE). Relevant legislation, policies and a collective agreement make provision for the respondent to convert the applicant to a permanent educator, yet the respondent failed to do so for no rational reason.
25. Section 23 of the Constitution of the Republic of South Africa provides that everyone has the right to fair labour practices. The applicant has continually been appointed by the respondent on a temporary basis. The respondent refuses to appoint him as a permanent educator, thereby violating his constitutional right to fair labour practices by the respondent.
26. The SGB’s recommendation to the respondent confirming the applicant’s eligibility for conversion to a permanent educator provided the applicant with an expectation of a permanent employment. The respondent has denied the applicant the conversion to a permanent educator without a good, substantive reason.
27. The applicant is a capable, efficient, and effective educator. The permanent appointment of the applicant at the school, for which he is eligible, is in the best interests of the community, education, the school, and the learners.
The applicant closed its case.
THE RESPONDENT’S CASE
The respondent’s representative, Mr. Paul Muller, testified as follows:
28. In 2018, as per the Northern Cape Department of Education’s Educator Staff Establishment Policy, Kheis Methodist Primary School qualified for four educator posts. The school appointed a student educator, Ms. M Magerman, in 2018, to fill a post-level 1 post that had become vacant because of the dismissal of an educator, Mr. MJ Markus. At the termination of this contract in December 2018, the SGB extended Ms. Magerman’s appointment until the end of 2019. The applicant was employed at Kleinzee Centre of Learning until his employment contract expired on 31 December 2018.
29. In terms of the 2019 Staff Establishment Policy, the school qualified for four educator posts. The three post-level 1 posts were filled by Ms. S Willemse, Ms. M B Beukes and Ms. Magerman. The principal’s post, being a post-level 2 post, became vacant due to the resignation of the erstwhile principal, Ms. D Waldeck. Ms. Beukes, a permanent post-level 1 educator, was appointed to act as principal in the post-level 2 post for the 2019 academic year. The school recruited Mr. van den Heever for the 2019 school year because there was a need for a post-level 1 educator on a temporary basis, against the principal post.
30. The 2020 Staff Establishment Policy provided that the school qualified for three educator posts, comprising of one post-level 2 post (principal post) and two post-level 1 posts, losing one post-level 1 post. The only vacant post was the post-level 2 post being a principal’s post. Mr. van den Heever is carried against this post and it is unlikely that he can be absorbed permanently.
31. Subsection 4.2 of the Collective Agreement 4 of 2018 deals with the eligibility for conversion to a permanent educator. It stipulates that an educator may be considered for conversion to a DoE’s approved Educator Staff Establishment if the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion.
32. The applicant is not eligible for conversion because he does not occupy a funded, substantive, and vacant post. There is not a vacant post-level 1 post available at Kheis Methodist Primary School, only a vacant post-level 2 post.
33. In December 2019, the applicant inquired from his Circuit Manager, Mr. R. Jantjies, about his application for conversion to a permanent educator post. In terms of the Educator Staff Establishment for 2019 and 2020, Mr. Jantjies explained the reasons in terms of subsection 4.2 as to why he was not eligible for conversion to a permanent educator. The applicant accepted the explanation provided. Contrary to her claims, this explanation was also provided to the applicant’s trade union representative.
34. The respondent has not discriminated against the applicant. He did not qualify to be converted in a promotional post on the basis that he does not occupy a funded, substantive, vacant post. Promotional posts can only be filled through the process of advertising the position in the Government Gazette, followed by shortlisting and interviewing those candidates.
The respondent closed its case.
ANALYSIS OF EVIDENCE AND ARGUMENTS
35. The applicant referred a dispute in terms of section 24(2) of the LRA. Section 24 of the LRA provides for the “interpretation or application” of collective agreements. The interpretation of this section provides for a dispute resolution device ancillary to collective bargaining, not to be used to remedy an unfair labour practice under pretext that a term of a collective agreement has been breached.
36. The phrase “interpretation or application” is not to be read disjunctively, the enforcement of the terms of a collective agreement is a process which follows on a positive finding about application and not a facet of application. A dispute about an employer’s failure to promote (in this case, to convert an employee from a temporary to permanent educator) is, properly characterized as an unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA. It is trite law that a commissioner must characterise a dispute objectively and not slavishly defer to the parties’ subjective characterisation. Failure to do so is an irregularity and reviewable.
37. The Court in Wardlaw v Supreme Moulding (Pty) Limited (JA31/04)  ZALAC 2;  6 BLLR 487 (LAC) (10 January 2007) dealt with the question of whether the employees’ characterisation of a dispute should enjoy deference and it rejected that approach. As a result, in Wardlaw, the commissioner was held to have incorrectly assumed jurisdiction over a dispute that should have been dealt with by the Labour Court. The Constitutional Court disposed of this issue in CUSA v Tao Ying Metal Industries and Others (CCT 40/07)  ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC);  1 BLLR 1 (CC); (2008) 29 ILJ 2461 (CC) (18 September 2008), stating that:
“A commissioner must, as the LRA requires, ‘deal with the substantial merits of the dispute’. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in”.
38. I considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
39. The applicant based its case on the interpretation and application of Collective Agreement 4 of 2018, specifically subsection 4.2 of the annexure that regulates the eligibility for conversion. The applicant claimed that during 2019, in line with the DoE’s approved Educator Staff Establishment, he occupied a funded, substantive, and vacant post-level 1 post at Kheis Methodist Primary School and met all the criteria required for conversion to a permanent educator in respect of subsection 4.2.
40. The respondent argued that the applicant was not eligible for conversion to a permanent educator on the basis that he did not occupy a funded, substantive, and vacant post-level 1 post at Kheis Methodist Primary School.
41. In line with the DoE’s approved Educator Staff Establishment for 2019, the school qualified for four posts, three being post-level 1 educator posts and one post-level 2 post. The applicant claimed he was appointed at Kheis Methodist Primary School as a temporary educator, his nature of appointment being aligned to appointment code 26 which is in line with a post-level 1 educator.
42. In 2019, two educators were appointed on a temporary basis, being the applicant and Ms. Magerman, whose appointment was extended from 2018. The applicant was a fully qualified educator in 2019, while Ms. Magerman was still completing her studies. This implies that the applicant was eligible for conversion in that a substantive vacant post was available at the school, and that of the two educators appointed, he was the only one who qualified for the post-level 1 post.
43. On 10 April 2020, Mr. P T A Cloete, the Acting District Director of the Namakwa district of the Northern Cape Department of Education, issued a letter to the management and SGB of the Kheis Methodist Primary School, confirming that the applicant was eligible for conversion to a permanent educator on the basis of his employment in a funded, substantive, and vacant post-level 1 post at Kheis Methodist Primary School as he was employed in a temporary capacity in that post, for a continuous period of at least three months.
44. Mr. Cloete confirmed that the applicant qualified for conversion to a permanent educator with effect from 01 April 2019 if he was continually employed from the date of his appointment to 31 March 2019 and subject to him having met the requirements in respect of section 4.2 of the annexure of the Collective Agreement 4 of 2018. A recommendation from the SGB was required for this conversion to be implemented.
45. The District official listed in this correspondence in respect of any inquiries on behalf of the respondent was the applicant’s Circuit Manager, Mr. R A Jantjies. This implies that the respondent’s claims that Mr. Jantjies explained to the applicant that he was not eligible for conversion on the basis that he did not occupy a vacant substantive, funded post-level 1 post, are in direct contradiction to an official letter signed by the Acting District Director and of which it is assumed that Mr. Jantjies was fully aware.
46. If indeed this was the case and only conveyed to the applicant by Mr. Jantjies in December 2020, the question that needs to be asked is, “Why did the respondent only respond to the directive provided on 10 April 2019, in December 2020?” As a result, based on this and the respondent’s failure to call on Mr. Jantjies as a witness to confirm this at these proceedings, I cannot accept the respondent’s submissions, being hearsay, in respect of Mr. Jantjies interactions with the applicant.
47. In May 2019, the SGB responded to the Acting District Director’s request in his letter dated 10 April 2019, confirming that the applicant’s conversion was discussed and was met favourably at a SGB meeting. A recommendation that the applicant be converted to a permanent educator, was submitted to the DoE for implementation. This submission was not challenged by the respondent.
48. Based on the confirmation by the DoE’s Acting District Manager that the applicant was eligible for conversion, the SGB’s further confirmation thereof, the SGB’s recommendation in May 2019 that the conversion was favourable and the DoE’s confirmation that the conversion should have been effected on 01 April 2019, the only inference that I can make, is that the respondent, for no good cause, failed to implement this directive.
49. As claimed by the respondent that the applicant was appointed as a substitute teacher, or in the position against that of the principal’s post-level 2 post in 2019, considered on a balance of probabilities, is highly unlikely. The applicant was not appointed to act as the principal in a post-level 2 post – this was filled by Ms. Beukes; he was not remunerated as an acting principal, and he carried out his duties as a post-level 1 educator (as per his nature of appointment and post level as per applicant’s service record).
50. The respondent’s failure to have implemented the directive of the Acting District Directive, effective 01 April 2019 and then more than seven months later, claim that the applicant was not eligible for conversion due to the school losing one educator based on the DoE’s approved Educator Staff Establishment for 2020, cannot be accepted. Had the applicant been converted timeously, as per the DoE’s own directive, it follows that based on para 39 above, Ms. Magerman should have been appointed against the substitute educator post vacated by Ms. Beukes, in 2020. The applicant’s conversion would then not have been a contentious issue.
51. In considering the totality of the evidence placed before me, I find that literal interpretation and application of clause 4.2 of the annexure to the Agreement is interpreted to mean that should the applicant have been appointed in a funded, substantive, and vacant post on the approved educator establishment for more than three months as a temporary educator, if he qualified for the post in question, if he was registered with SACE and if he was a South African citizen, then he was eligible for conversion to a permanent educator.
52. On a balance of probabilities, in my consideration of the evidence presented and the arguments of the parties, I find that the applicant, has successfully discharged the onus of proof that he qualifies for conversion from a temporary educator to a permanent educator.
1. The applicant has successfully discharged its onus in this matter to prove the respondent’s failure to convert his status from a temporary educator to a permanent educator.
2. As a result of the aforesaid, the respondent is ordered to convert the applicant from a temporary educator to a permanent educator in accordance with the provisions of subsection 4.2 of Collective Agreement 04 of 2018, effective, 01 April 2019.
ELRC Dispute Resolution Panellist