Case Number: ELRC184-20EC
Province: Eastern Cape
Applicant: NAPTOSA obo Ruckia Abrahams (Pietersen)
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Interpretation of collective agreements
Award Date: 20 January 2021
Arbitrator: Hadley Saayman
Case Number: ELRC184-20EC
Panelist: Hadley Saayman
Date of Award: 20 January 2021
In the ARBITRATION between
NAPTOSA obo Ruckia Abrahams (Pietersen)
Department of Education – Eastern Cape
Applicant’s representative: Mr A Adams
Applicant’s address: 28 6th Avenue
Telephone: 041- 364 0399
Respondent’s representative: Mr E Hector
Respondent’s address: Department of Education-EC
Private Bag X0032
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration on 20 and 25 December 2020. The Applicant was represented by Mr A Adams an Executive Officer of NAPTOSA and the Respondent was represented by Mr E Hector, a Labour Relations Officer. The hearing was held virtually.
ISSUE TO BE DECIDED
2. 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 Collective Agreement 04 of 2018 (“the Agreement”). I am required to determine whether the respondent acted unfairly towards the Applicant in not appointing the Applicant as a permanent educator (post-level 1), at St. Patrick’s Primary School as per the aforesaid Agreement.
BACKGROUND TO THE ISSUES
3. The Applicant was appointed as a substitute educator by the Respondent, the Eastern Cape Department
of Education (ECDOE) for the period 1 January 2020 – 31 March 2020 in the position of Ms J. Brown
who was on incapacity leave. Ms J. Brown was further booked of on incapacity leave and retired on the
30th of April 2020.The Applicant was paid an amount of R49 422,00 on 29 June 2020 and a further
R18 286,21 in lieu of benefits on the 6th of July 2020.
4. Regarding relief, the applicant seeks permanent appointment as an educator.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
6. The applicant testified that the deputy- principal at St Patricks Primary School, Mr Prince contacted
her telephonically on the 12th of January 2020 enquiring whether she was interested in a substitute post at the school. He requested her to assume duties on the 14th of January 2020 as a substitute in the place of Mrs Jean Brown. She testified that she completed the application forms and that she assumed duties as from 15 January 2020.
7. The applicant testified that to date, she never received an appointment letter indicating her appoint-ment period and never received a payslip even though her salary and benefits were paid out to her. She further testified that the principal and the deputy indicated that she would be appointed permanent-ly once Ms Brown retire and the post becomes substantive vacant.
8. The applicant also testified that she never signed a contract with the SGB and that she always signed the departmental attendance register.
9. The applicant furthermore testified that Mrs Lippert and Mr Prince told her not to return for duty as from 1 April 2020. She continued preparing work for the learners during the lockdown period and returned to the school when it re-opened in June 2020. She was never told that she was in a SGB post.
10. The respondent called 2 witnesses . The first witness was Mrs Lippert, the School Principal testified that she applied for a substitute for Ms Brown for the period 1 April 2020 untill 30 April 2020. Mrs Lippert was told by the department will not approve an appointment as the ECDOE was not sure if the Grades 1 would return to school for the rest of the year because of the Covid-19 pandemic. She then offered the applicant a SGB post at R6000 per month. This was done orally. She further testified that she made a submission in September for a temporary educator in the substantive vacant post of Mr Geswint, who was promoted to Head of Department. To date she received no response from the ECDOE.
11. The second witness was Mr J Mazangwa, the chairperson of the School Governing Body (SBG) He
testified that the applicant is employed by the SGB as from 1 May 2020 and is remunerated at R6000,00
per month. He was informed by the principal that the department suspended the filling of substantive
vacant posts and therefore a decision was made to that the SGB would pay the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. The Constitutional Court 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 be-tween 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 com-missioner 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 dis-pute 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”.
13. The applicant’s case is based on the interpretation and application of Collective Agreement 4 of 2018, specifically subsection 4.2 that regulates the eligibility for conversion. It was common cause that the applicant occupied a funded, substantive and vacant post-level 1 post at St Patrick Primary School during 2020, in line with the DoE’s approved Educator Staff Establishment and met all the criteria re-quired for conversion to a permanent educator in respect of subsection 4.2.
14. The respondent argued that the Department of Education advised that the permanent appointment of Foundation Phase educators should be kept in abeyance as the Department was not sure if the grade 1 learners would return to school for the rest of the year because of the Covid-19 pandemic.
15. It was common cause that, in line with the DoE’s approved Educator Staff Establishment for 2020, the school qualified for the post-level 1 educator post. It was also common cause that the applicant was recommended by the SGB and School Principal for the permanent appointment as a post-level 1 educator. This implies that the applicant was eligible for conversion in that a substantive vacant post that was available at the school, and that she qualified for the post-level 1 post.
16. The respondent confirmed that the applicant was eligible for conversion to a permanent educator on the basis of her employment in a funded, substantive, and vacant post-level 1 post at St Patrick’s Primary School as she was employed in a temporary capacity in that post, for a continuous period of at least three months.
17. The respondent claims that the applicant was not eligible for conversion on the basis that she did not receive an appointment letter from the respondent.
18. Fairness requires that the position and interests of both parties are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Act.
19. It was common cause that the applicant was appointed as a substitute teacher in a temporary capaci-ty, in the place of Ms Brown, who was on sick leave for the period 1 January 2020 to 30 April 2020 and subsequently retired as from 1 May 2020. It was also common cause that the applicant continued to teach in the place of Ms Brown until the date of the hearing.
20. It was further common cause that the applicant was a new entrant and eligible for conversion, the SGB’s further motivation and confirmation thereof, the SGB’s recommendation in July 2020 that the conversion was favourable, and that the conversion should have been effective on 01 May 2020.
21. In considering the totality of the evidence placed before me, I find that literal interpretation and applica-tion 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 establish-ment for more than three months as a temporary educator, if she qualified for the post in question, if she was registered with SACE and if he was a South African citizen, then she was eligible for conver-sion to a permanent educator.
22. I have also considered relevant factors inter alia:
• The purpose and reason for the temporary appointment of the applicant.
• The availability of a post on the educator establishment.
• The interest of the learners and the community.
23. 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 she qualifies for conversion from a temporary educator to a permanent educator.
24. The applicant has successfully discharged its onus in this matter to prove the respondent’s failure to convert her status from a temporary educator to a permanent educator.
25. As a result of the aforesaid, the respondent, Department of Education -Eastern Cape, is ordered to convert the applicant, Ruckia Abrahams (Pietersen) from a temporary educator to a permanent edu-cator in accordance with the provisions of subsection 4.2 of Collective Agreement 04 of 2018, with ef-fect 1 July 2020.
Commissioner: Hadley Saayman