ELRC371-20/21LP
Text
Award Date:
21 July 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY
Case No. ELRC371-20/21LP
In the matter between
MURINDA SAMUEL Applicant
And
LIMPOPO DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
Details of hearing and representation
1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place virtually on 30 June 2021 at 9:00AM. The applicant, Murinda Samuel was represented by Monyai Thobja from South African Democratic Teachers’ Union (SADTU), while the respondent, Limpopo Department of Education was represented by Matlou Mokgoba, its official. The proceedings were digitally voice recorded and conducted in English.
Nature of the dispute
2. The dispute was about the applicant’s alleged unfair labour practice related to promotion. The applicant is alleging that the respondent failed to convert him from temporary to permanent status of employment in terms of Education Labour Relations Council (ELRC) Collective Agreement 4 of 2018.
Issues to be decided.
3. I must decide whether the applicant is eligible for conversion to permanent status of employment or not. I must determine an appropriate relief if it is found that the applicant is eligible.
Background to the dispute and common cause issues
4. The applicant was employed by the respondent on 10 February 2010 as an Educator in a temporary capacity. The conversion of temporary educators to permanent employees is provided for in the Collective Agreement 4 of 2018.The applicant is a Zimbabwean national. He has a permanent resident permit and South African identity document.
Survey of the Applicant’s evidence and argument
The applicant handed in bundle of documents, which I marked BUNDLE A. One witness, the applicant himself testified.
Samuel Murinda testified under oath and in English that:
5. ELRC Collective Agreement 4 of 2018 regulates the conversion of Educators from temporary to permanent status of employment. The requirements were that the temporary Educator must be employed for three (3) months, the position must be substantive and Post Level (PL) 1, the Educator must qualify for the post, the Educator must register with South African Council of Educators (SACE) and the Educator must be either a citizen of South Africa or permanent resident of South Africa. He has been working at the same school since February 2010 on a substantive post (post number 12) covered by the school establishment. He qualified for the post since he had RQEV 17 and the minimum required was RQEV 13. He was registered with SACE since 2010 and he has been a permanent resident of South Africa since 2014. The school he was working at was a public school. He was teaching Mathematics and Physical Science at high school level. He met all the requirements as per item 4.2.1.1 to 4.2.1.4 of the ELRC Collective Agreement 4 of 2018. The principal of the school he was teaching initiated the process of converting him to permanent status by writing a motivation to the District Office. Since 2010, his contract of employment has been renewed annually up until 31 December 2020. His first registration with SACE was temporary and the certificate indicated the expiry date. On acquiring the South African Identity Document, he renewed his SACE registration and the certificate does not expire.
During cross examination, Murinda testified that he is currently not employed. By the time he referred the dispute, he was employed. His South African Identity Document and permanent resident permit were properly obtained.
Survey of the Respondent’s evidence and argument
The respondent handed in bundle of documents which I marked BUNDLE B. One witness testified for the respondent. Thomani Victor Lukheli testified under oath and in English that:
6. He was employed by the respondent as an Assistant Director: Human Resources. His duties included dealing with recruitment, appointment, transfer, and others. Conversion of an Educator from temporary to permanent is done when the Educator is meeting all the requirements. The requirements were that the post occupied by the Educator must be substantive. The Educator must have REQV 13 qualification and is employed. The Educator must be a citizen of South Africa and registered with SACE. The SACE registration of the applicant was provisional, meaning that it expires. The applicant was not registered with SACE as from 17 December 2016. If one was not registered with SACE one could not be an Educator. The applicant was issued with the permanent SACE registration certificate on 04 May 2021. A person who was not registered with SACE could not be converted to permanent post. The applicant did not qualify to be converted to permanent post. The permanent resident permit of the applicant was issued in terms of section 27(a) of the Immigration Act, 13 of 2002. The permit is issued to a person who has a permanent employment. It was not mandatory to convert an Educator to permanent status. The applicant did not meet all the requirements as per items 4.2.1.1 to 4.2.1.4 of the ELRC Collective Agreement 4 of 2018. The South African Identity Document issued to the applicant indicated non-south African citizen and a person with non-south African citizen status could not be appointed in South Africa.
During cross examination, Lukheli testified that appointment of Educator was delegated to the District Directors. The applicant was employed on a temporary basis since 2010 to 31 December 2020. The post in which the applicant was employed was post level 1 covered by the staff establishment. The applicant met the minimum qualification requirement of the post. The applicant would not have been employed since December 2016 to 31 December 2020 if he was not registered with SACE. The respondent was extending the employment of the applicant through the filling of assumption of duty forms and could not have been extended without SACE registration. The applicant did not qualify to be converted because of the reasons that he was not registered with SACE and a permanent resident permit not properly obtained.
Analysis of the evidence and arguments
7. In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended, an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. The applicant referred an unfair labour practice dispute related to promotion. He alleged that the respondent failed to convert him from temporary to permanent status of employment.
8. The applicant’s testimony was that the ELRC Collective Agreement 4 of 2018 provides that a temporary Educator will be eligible to be converted to permanent status of employment if that Educator meets the following requirements; the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion, the temporary educator qualifies for the post in question, The temporary educator is registered with South African Council of Educators (SACE) and the temporary educator is a citizen or permanent resident of South Africa. The applicant testified that he has been employed by the respondent since February 2010 as a temporary educator at a public school. He was occupying a substantive post level 1, post number 12. His qualification is REQV 17. He was registered with the South African Council of Educators (SACE) and issued with the permanent resident permit since 2014. It was the evidence of the applicant that his Principal initiated the process of his conversion by writing a motivation to the District Office of the respondent, but there was no response.
9. The respondent disputed the evidence of the applicant by testifying that the applicant was not eligible to be converted to permanent employment status. The reason being that the applicant was not registered with the South African Council of Educators (SACE) and his permanent resident permit was issued improperly. The testimony of the respondent was that the applicant was not registered with SACE since 2016 up until 31 December 2020, when his employment terminated and the permanent resident permit the applicant has indicates that he is a non-South African. The applicant could not be converted, because he did not meet all the requirements for conversion.
10. Education Labour Relations Council (ELRC) Collective Agreement 4 of 2018, Annexure A, clause 4.2.1 states that ‘’A temporary educator may only be appointed permanently funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.1 the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion;
4.2.1.2 the temporary educator qualifies for the post in question;
4.2.1.3 the temporary educator is registered with South African Council of Educators (SACE); and
4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa and is fit and proper person as contemplated in the Immigration Act, 13 of 2002, as amended and section 10 of the Public Service Act, 1994 (Proclamation No. 103 of 1994) as amended’’.
The testimony of the applicant was more probable to an extent that it outweighs that of the respondent. The applicant met all the requirements for conversion to permanent status of employment and as such the applicant was eligible for conversion. The respondent testified that the applicant was not registered with SACE, but there were certificates of registration with SACE that the applicant submitted. The initial certificate was provisional, meaning that it has expiry date and must be renewed annually. The reason for provisional certificate was that the applicant was not yet a permanent resident of South Africa. The respondent was not going to employ the applicant without SACE registration certificate. After acquiring permanent resident of South African permit in 2014, the applicant was issued with permanent SACE registration certificate with no expiry date. The testimony of the respondent to the effect that the applicant was not registered with SACE since 17 December 2016 was misleading. The respondent testified that an educator could not be employed if that educator was not registered with SACE, but it was the testimony of the respondent that the applicant has been employed since 2010 until 31 December 2020, meaning that since 17 December 2016 to 31 December 2020 the applicant was employed without SACE registration certificate. It is therefore my considered view that the applicant has been registered with SACE and as such met that requirement.
11. The other reason which the respondent advanced is that it has prevented the respondent from converting the applicant was that the permanent resident of South Africa permit issued to the applicant was not properly obtained. The respondent’s testimony was that the permit was issued in terms of section 27(a) of the Immigration Act, 13 of 2002. In terms of this section, only a person who has already secured a permanent employment should be issued with a permanent resident permit. The applicant was not permanently employed when he applied and issued with permanent resident of South Africa permit. I am not convinced by this testimony of the respondent. The witness of the respondent is an Assistant Director: Human Resources and no witness from the Department of Home Affairs was called to come an interpret this section of the Immigration Act. The fact that the applicant was having a permanent resident permit, made him eligible for conversion. It is therefore my view that the applicant met this requirement for conversion.
12. In terms of the first two eligibilities for conversion as provided by Annexure A, clause 4.2 of ELRC Collective Agreement 4 of 2018, the respondent conceded that the applicant met them and as such I agree with the testimony of both parties. Annexure A, clause 4.3.3 of the same collective agreement mentioned supra provides that the Head of Department may refuse conversion if; (i) the conversion would result in a contravention of the principles of equity, redress and representativity and the democratic values, (ii) the Head of Department has decided to follow normal recruitment and selection process and (iii) the appointment of the temporary educator was because of the increase on the volume of work. All these reasons were not canvased by the respondent.
13. In any unfair labour practice dispute, the burden of prove rest with the applicant. The applicant had to prove that he was eligible for conversion from temporary to permanent status. In view of the above analysis I find that the applicant has on the balance of probabilities proved that he was eligible for conversion from temporary to permanent status of employment. The applicant prays that he be converted to permanent status effective from 13 October 2020. This relief sought by the applicant is inappropriate in these circumstances because the applicant’s employment with the respondent terminated on 31 December 2020. There was no evidence regarding the status of the post the applicant occupied (post No. 12). I, therefore, believe that compensation would be the most appropriate relief in these circumstances. In determining the amount of compensation,
I have taken into consideration the facts that the applicant has been in temporary employment contract since February 2010 up until December 2020 and that he is currently unemployed.
Award
14. I find that the respondent, Limpopo Department of Education committed an unfair labour practice related to promotion against the applicant, Murinda Samuel.
15. The respondent, Limpopo Department of Education is hereby ordered to compensate the applicant, Murinda Samuel in the amount of R280 038.00 (Two Hundred and Eighty Thousand Thirty Eight Rand), less Tax if applicable, being twelve months’ salaries calculated at R23 336.50 per month.
16. The whole amount in terms of paragraph 15 supra must be paid to the applicant on or before 01 September 2021, failing which it shall earn interest in terms of section 143 of the Act.
V. Madula
Case No. ELRC371-20/21LP
In the matter between
MURINDA SAMUEL Applicant
And
LIMPOPO DEPARTMENT OF EDUCATION Respondent
ARBITRATION AWARD
Details of hearing and representation
1. This award is rendered in accordance with the provisions of Section 138 (7) of the Labour Relations Act, 66 of 1995 (the Act). The hearing took place virtually on 30 June 2021 at 9:00AM. The applicant, Murinda Samuel was represented by Monyai Thobja from South African Democratic Teachers’ Union (SADTU), while the respondent, Limpopo Department of Education was represented by Matlou Mokgoba, its official. The proceedings were digitally voice recorded and conducted in English.
Nature of the dispute
2. The dispute was about the applicant’s alleged unfair labour practice related to promotion. The applicant is alleging that the respondent failed to convert him from temporary to permanent status of employment in terms of Education Labour Relations Council (ELRC) Collective Agreement 4 of 2018.
Issues to be decided.
3. I must decide whether the applicant is eligible for conversion to permanent status of employment or not. I must determine an appropriate relief if it is found that the applicant is eligible.
Background to the dispute and common cause issues
4. The applicant was employed by the respondent on 10 February 2010 as an Educator in a temporary capacity. The conversion of temporary educators to permanent employees is provided for in the Collective Agreement 4 of 2018.The applicant is a Zimbabwean national. He has a permanent resident permit and South African identity document.
Survey of the Applicant’s evidence and argument
The applicant handed in bundle of documents, which I marked BUNDLE A. One witness, the applicant himself testified.
Samuel Murinda testified under oath and in English that:
5. ELRC Collective Agreement 4 of 2018 regulates the conversion of Educators from temporary to permanent status of employment. The requirements were that the temporary Educator must be employed for three (3) months, the position must be substantive and Post Level (PL) 1, the Educator must qualify for the post, the Educator must register with South African Council of Educators (SACE) and the Educator must be either a citizen of South Africa or permanent resident of South Africa. He has been working at the same school since February 2010 on a substantive post (post number 12) covered by the school establishment. He qualified for the post since he had RQEV 17 and the minimum required was RQEV 13. He was registered with SACE since 2010 and he has been a permanent resident of South Africa since 2014. The school he was working at was a public school. He was teaching Mathematics and Physical Science at high school level. He met all the requirements as per item 4.2.1.1 to 4.2.1.4 of the ELRC Collective Agreement 4 of 2018. The principal of the school he was teaching initiated the process of converting him to permanent status by writing a motivation to the District Office. Since 2010, his contract of employment has been renewed annually up until 31 December 2020. His first registration with SACE was temporary and the certificate indicated the expiry date. On acquiring the South African Identity Document, he renewed his SACE registration and the certificate does not expire.
During cross examination, Murinda testified that he is currently not employed. By the time he referred the dispute, he was employed. His South African Identity Document and permanent resident permit were properly obtained.
Survey of the Respondent’s evidence and argument
The respondent handed in bundle of documents which I marked BUNDLE B. One witness testified for the respondent. Thomani Victor Lukheli testified under oath and in English that:
6. He was employed by the respondent as an Assistant Director: Human Resources. His duties included dealing with recruitment, appointment, transfer, and others. Conversion of an Educator from temporary to permanent is done when the Educator is meeting all the requirements. The requirements were that the post occupied by the Educator must be substantive. The Educator must have REQV 13 qualification and is employed. The Educator must be a citizen of South Africa and registered with SACE. The SACE registration of the applicant was provisional, meaning that it expires. The applicant was not registered with SACE as from 17 December 2016. If one was not registered with SACE one could not be an Educator. The applicant was issued with the permanent SACE registration certificate on 04 May 2021. A person who was not registered with SACE could not be converted to permanent post. The applicant did not qualify to be converted to permanent post. The permanent resident permit of the applicant was issued in terms of section 27(a) of the Immigration Act, 13 of 2002. The permit is issued to a person who has a permanent employment. It was not mandatory to convert an Educator to permanent status. The applicant did not meet all the requirements as per items 4.2.1.1 to 4.2.1.4 of the ELRC Collective Agreement 4 of 2018. The South African Identity Document issued to the applicant indicated non-south African citizen and a person with non-south African citizen status could not be appointed in South Africa.
During cross examination, Lukheli testified that appointment of Educator was delegated to the District Directors. The applicant was employed on a temporary basis since 2010 to 31 December 2020. The post in which the applicant was employed was post level 1 covered by the staff establishment. The applicant met the minimum qualification requirement of the post. The applicant would not have been employed since December 2016 to 31 December 2020 if he was not registered with SACE. The respondent was extending the employment of the applicant through the filling of assumption of duty forms and could not have been extended without SACE registration. The applicant did not qualify to be converted because of the reasons that he was not registered with SACE and a permanent resident permit not properly obtained.
Analysis of the evidence and arguments
7. In terms of Section 193 (4) of the Labour Relations Act, 66 of 1995 as amended, an Arbitrator appointed in terms of this Act may determine any unfair labour practice dispute on terms the Arbitrator deems reasonable. The applicant referred an unfair labour practice dispute related to promotion. He alleged that the respondent failed to convert him from temporary to permanent status of employment.
8. The applicant’s testimony was that the ELRC Collective Agreement 4 of 2018 provides that a temporary Educator will be eligible to be converted to permanent status of employment if that Educator meets the following requirements; the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion, the temporary educator qualifies for the post in question, The temporary educator is registered with South African Council of Educators (SACE) and the temporary educator is a citizen or permanent resident of South Africa. The applicant testified that he has been employed by the respondent since February 2010 as a temporary educator at a public school. He was occupying a substantive post level 1, post number 12. His qualification is REQV 17. He was registered with the South African Council of Educators (SACE) and issued with the permanent resident permit since 2014. It was the evidence of the applicant that his Principal initiated the process of his conversion by writing a motivation to the District Office of the respondent, but there was no response.
9. The respondent disputed the evidence of the applicant by testifying that the applicant was not eligible to be converted to permanent employment status. The reason being that the applicant was not registered with the South African Council of Educators (SACE) and his permanent resident permit was issued improperly. The testimony of the respondent was that the applicant was not registered with SACE since 2016 up until 31 December 2020, when his employment terminated and the permanent resident permit the applicant has indicates that he is a non-South African. The applicant could not be converted, because he did not meet all the requirements for conversion.
10. Education Labour Relations Council (ELRC) Collective Agreement 4 of 2018, Annexure A, clause 4.2.1 states that ‘’A temporary educator may only be appointed permanently funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.1 the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion;
4.2.1.2 the temporary educator qualifies for the post in question;
4.2.1.3 the temporary educator is registered with South African Council of Educators (SACE); and
4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa and is fit and proper person as contemplated in the Immigration Act, 13 of 2002, as amended and section 10 of the Public Service Act, 1994 (Proclamation No. 103 of 1994) as amended’’.
The testimony of the applicant was more probable to an extent that it outweighs that of the respondent. The applicant met all the requirements for conversion to permanent status of employment and as such the applicant was eligible for conversion. The respondent testified that the applicant was not registered with SACE, but there were certificates of registration with SACE that the applicant submitted. The initial certificate was provisional, meaning that it has expiry date and must be renewed annually. The reason for provisional certificate was that the applicant was not yet a permanent resident of South Africa. The respondent was not going to employ the applicant without SACE registration certificate. After acquiring permanent resident of South African permit in 2014, the applicant was issued with permanent SACE registration certificate with no expiry date. The testimony of the respondent to the effect that the applicant was not registered with SACE since 17 December 2016 was misleading. The respondent testified that an educator could not be employed if that educator was not registered with SACE, but it was the testimony of the respondent that the applicant has been employed since 2010 until 31 December 2020, meaning that since 17 December 2016 to 31 December 2020 the applicant was employed without SACE registration certificate. It is therefore my considered view that the applicant has been registered with SACE and as such met that requirement.
11. The other reason which the respondent advanced is that it has prevented the respondent from converting the applicant was that the permanent resident of South Africa permit issued to the applicant was not properly obtained. The respondent’s testimony was that the permit was issued in terms of section 27(a) of the Immigration Act, 13 of 2002. In terms of this section, only a person who has already secured a permanent employment should be issued with a permanent resident permit. The applicant was not permanently employed when he applied and issued with permanent resident of South Africa permit. I am not convinced by this testimony of the respondent. The witness of the respondent is an Assistant Director: Human Resources and no witness from the Department of Home Affairs was called to come an interpret this section of the Immigration Act. The fact that the applicant was having a permanent resident permit, made him eligible for conversion. It is therefore my view that the applicant met this requirement for conversion.
12. In terms of the first two eligibilities for conversion as provided by Annexure A, clause 4.2 of ELRC Collective Agreement 4 of 2018, the respondent conceded that the applicant met them and as such I agree with the testimony of both parties. Annexure A, clause 4.3.3 of the same collective agreement mentioned supra provides that the Head of Department may refuse conversion if; (i) the conversion would result in a contravention of the principles of equity, redress and representativity and the democratic values, (ii) the Head of Department has decided to follow normal recruitment and selection process and (iii) the appointment of the temporary educator was because of the increase on the volume of work. All these reasons were not canvased by the respondent.
13. In any unfair labour practice dispute, the burden of prove rest with the applicant. The applicant had to prove that he was eligible for conversion from temporary to permanent status. In view of the above analysis I find that the applicant has on the balance of probabilities proved that he was eligible for conversion from temporary to permanent status of employment. The applicant prays that he be converted to permanent status effective from 13 October 2020. This relief sought by the applicant is inappropriate in these circumstances because the applicant’s employment with the respondent terminated on 31 December 2020. There was no evidence regarding the status of the post the applicant occupied (post No. 12). I, therefore, believe that compensation would be the most appropriate relief in these circumstances. In determining the amount of compensation,
I have taken into consideration the facts that the applicant has been in temporary employment contract since February 2010 up until December 2020 and that he is currently unemployed.
Award
14. I find that the respondent, Limpopo Department of Education committed an unfair labour practice related to promotion against the applicant, Murinda Samuel.
15. The respondent, Limpopo Department of Education is hereby ordered to compensate the applicant, Murinda Samuel in the amount of R280 038.00 (Two Hundred and Eighty Thousand Thirty Eight Rand), less Tax if applicable, being twelve months’ salaries calculated at R23 336.50 per month.
16. The whole amount in terms of paragraph 15 supra must be paid to the applicant on or before 01 September 2021, failing which it shall earn interest in terms of section 143 of the Act.
V. Madula
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ELRC 302 -20 /21 NW
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