ELRC373-22/23GP

Case Number: ELRC373-22/23GP
Commissioner: Leanne Alexander
Date of Award: 16 November 2022

In the ARBITRATION between:
Tshupe Ruben Teleko
(Applicant)
And
Gauteng Department of Education
(Respondent)

Details of hearing and representation
1. The arbitration took place virtually (via Zoom) on 21 October 2022.
2. Mr Mkateko Raymond Maluleke, a Union Official, represented the Applicant. The Applicant, Mr Tshupe Teleko, was also present in the proceedings.
3. Ms Tania Motalib, appeared for the Respondent.
4. The proceedings were conducted in English.
5. The Applicant referred an unfair dismissal dispute in terms of Section 191 (5)(a)(i) of the Labour Relations Act, Act 66 of 1995 (“LRA”) on 22 September 2022.
6. The matter was thereafter, set down for arbitration proceedings on 11 October 2022.
7. In terms of Section 138(7) of the “LRA” “within 14 days of the conclusion of the arbitration proceedings (a) the commissioner must issue an arbitration award with brief reasons”.
8. The matter followed an inquisitorial approach.
9. The hearing was digitally recorded, and manual notes were also taken.
10. I must place on record that both parties agreed to submit written heads of argument by close of business on 4 November 2022. The Applicant submitted their heads of argument on 25 October 2022 and the Respondent submitted their heads of argument on 4 November 2022. Whilst the submissions were duly considered, what follows is a summary of what must be determined.

The issue’s to be decided
11. I am to determine if the Applicant was dismissed, whether the dismissal was unfair, and if it was found to be so, I am further required to determine the appropriate relief. Furthermore, I am to determine whether the Respondent correctly applied the Collective Agreement No 1 of 2014 and the Collective Agreement No 4 of 2018.

The background to the dispute
12. It was common cause that the Applicant was employed as a Head of Department (“HOD”) since 1 January 2021.
13. The Applicant worked a 5-day week, at an average of 8 hours per day.
14. The Applicant stated that he was dismissed on 31 May 2022.
15. The Applicant sought retrospective reinstatement.

Summary of evidence and argument
The testimony led by the witnesses’ is fully captured on the recording of the proceedings and in the submissions of the heads of argument(s). What follows is a summary of the material and relevant issues I must determine.

Respondent’ case
Ms Tania Motalib
16. The Respondent’s representative, Ms Tania Motalib, submitted the following submissions:
17. The Applicant’s referral was referred as an “unfair dismissal” and “interpretation and application of a Collective Agreement” dispute. However, during the virtual proceedings the Applicant’s representative, Mr Mkateko Raymond Maluleke, could not clarify as to what the actual dispute was.
18. The Applicant was not subjected to a disciplinary hearing nor was he dismissed, therefore the referral was defective.
19. The Respondent submitted documentary evidence of the Applicant’s “employment contract” where it was submitted that the Applicant was terminated due to the expiry of his employment contract.
20. The Applicant submitted a grievance in June 2022, where he alleged that the Respondent had not correctly implemented the Collective Agreement No 4 of 2018 and the Collective Agreement No 1 of 2014.
21. The Respondent submitted that in the Applicant’s case a “contract (temporary) educator and education therapist will only be converted permanently to a vacant substantive post on the approved current post establishment at a public school provided that he/she meets the criteria”.
22. The Applicant was not in a vacant substantive post as he was appointed against a Head of Department (“HOD”) post and when the newly appointed HOD resumed his post on 1 June 2022, his contract would be terminated, therefore he would not be eligible for conversion from a temporary educator to a permanent post.
23. The Applicant approached the MEC and the Council, however the Applicant failed to accept that he was not in a vacant substantive post.
24. The Applicant referred to his representative, Mr Mkateko Raymond Maluleke, dispute wherein he was absorbed during 2014, in line with Circular 1 of 2014, however Mr Mkateko Raymond Maluleke, was in a vacant substantive post and met all the criteria.
25. The Applicant furthermore referred to Ms Khosa, dispute wherein she was employed against a promotional post and then absorbed because a vacant substantive post became available after she submitted a grievance it was established that she qualified for the role and thus was absorbed.
26. In these circumstances, the Applicant was not in a vacant substantive post, furthermore one did not become available after the appointment, therefore the Applicant did not qualify in line with Collective Agreement 1 of 2014 versus 2018.

Applicant’s case
Mr Tshupe Teleko
27. The Applicant’s representative, Mr Mkateko Raymond Maluleke, submitted the following submissions:
28. The Applicant was employed against a promotional post that was vacant after Mr Mohase, passed away during January 2021. The Applicant was appointed with effect from 1 January 2021, and he was verbally dismissed on 31 May 2022, by the Principal, Mr Thomas Mofolo. Furthermore, the HOD as appointed by the Department was to resume her duties on 1 June 2022.
29. The Applicant submitted a grievance on 7 June 2022, insofar that he was dismissed after being employed for a period of 3 (three) months continuous service in terms of Collective Agreement 4 of 2018, you ought to be converted to permanent status. However, the HOD that was appointed only taught English and not Sesotho.
30. The District Director, responded to the grievance on 23 June 2022, where it was submitted that the Applicant was terminated based on the “consideration of post establishment of the school, consideration of the curriculum needs of the school and based on the above reasons Mr TR Teleko’s contract was reasonably terminated by the institution”.
31. There appeared to be a contradiction by the same District Director on the conversion of temporary educators at the same school within her district, in relation to (Mr Mkateko Raymond Maluleke) appointment, wherein it was recommended that there be a “conversion of the employment status of Mr Maluleke from contract to permanent”.
32. There was an appeal to the HOD in response to the District Director’s response dated 23 June 2022. The HOD responded on 17 August 2022, where it was submitted that “…the nature of your post you were appointed on does not qualify you to be converted for absorption in a permanent capacity as it was not a vacant substantive level 1 post as per provision of the said paragraph 4 of the ELRC Collective Agreement 4 of 2018. Therefore, your appeal is dismissed”.
33. There was a similar case insofar as Ms Khosa’s matter was concerned and he submitted various emails between the parties in that regard.
34. The precedents have been set in the case of Mr Mkateko Raymond Maluleke and Ms Khosa’s matter. Furthermore, the responses by the District Director and the HOD violate the principle of fairness and consistency as they applied different clauses altogether to discriminate against the Applicant.
35. The Applicant had been appointed for 12 (twelve) months from 1 January 2021 to 31 December 2021, and post establishment were done between October 2021 to December 2021. During this period the Applicant was already on the system and in January 2022, the Respondent appointed him again and he served a further 5 (five) months, therefore qualifying personnel will be those in employment of the Respondent for a period of 3 (three) months, still employed by 31 October to 31 December of that year.
36. The Respondent’s contended that the Applicant occupied a “rotational post” and therefore did not qualify to be absorbed in terms of the curriculum needs of the school. “Rotational posts” do not form part of the Collective Agreements and the Employers Educators Act, Act 76 of 1998.
37. The Respondent failed to implement Collective Agreement No 1 of 2014 in respect of the Applicant as he was treated differently as other employees have been absorbed into permanent positions from the same position that the Applicant occupied against a promotional post.

Analysis of evidence and argument
38. The parties submitted written heads of argument.
39. In terms of Section 185 of the “LRA” every employee has the right not to be unfairly dismissed. Section 192(1) of the “LRA” as amended provides that “in any proceedings concerning dismissal, the employee (the Applicant) must establish the existence of the dismissal”. Concerning the matter before me the dismissal was in dispute, therefore the onus shifted to the Applicant to prove that the dismissal was procedurally and substantively fair.
40. I must place on record, that a Commissioner is duty bound to establish the true nature of the dispute, having said that I am not slavishly bound by the Applicant’s referral form.
41. In the case of Hospersa obo Tshambi v Department of Health, Kwazulu Natal [2016] 7 BLLR 649 (LAC) the Court held that “…an arbitrator is required to determine the true nature of the dispute between the parties”. Furthermore, “an arbitrator must make an objective finding about what is the dispute to be determined”.
42. While dismissal was in dispute, the second point that needed to be addressed was whether the Applicant was to be appointed in the vacant substantive position in terms of Collective Agreement No 1 of 2014 and Collective Agreement No 4 of 2018.
43. In considering the first point that I must determine on whether the Applicant was dismissed.
44. The Respondent submitted that although the Applicant referred an “unfair dismissal dispute” the “Applicant was not subjected to a disciplinary hearing nor was he dismissed, therefore the referral was defective”.
45. The Applicant submitted that he “was appointed with effect from 1 January 2021 and he was verbally dismissed on 31 May 2022, by the Principal, Mr Thomas Mofolo. Furthermore, the HOD as appointed by the Department was to resume her duties on 1 June 2022”.
46. It was common cause that the Applicant had been employed on a temporary basis with effect from 1 January 2021 until 31 May 2022.
47. With the evidence before me, I am inclined to accept the Respondent’s version over the Applicant’s version in that the Applicant’s temporary employment contract had an expiration date being, 31 May 2022. Therefore, the Applicant was not dismissed, but rather it was the conclusion of a temporary employment contract.
48. Now, I turn to the second point that required to be determined whether the termination of contract was fair in line with the Collective Agreement No 1 of 2014 and Collective Agreement No 4 of 2018 with regards to a substantive vacant post.
49. In the case of Northern Cape Forests v SA Agricultural & Allied Workers & others (1997) 18 ILJ 971 (LAC) the Court held that “…the interpreter of a collective agreement should in addition to applying the ordinary principles of interpretation of contracts ask the question whether the interpretation yielded by these principles accords with the objectives of the Labour Relations Act”.
50. Collective Agreement 1 of 2014, June 2014 provides that:
5.2 “Conversion process of temporary appointment of a post level 1 educators into permanent appointment
5.2.1 Educators appointed in a temporary capacity and who, subject to clause 5.2.2 to 5 .2.5 will qualify for the immediate conversion to a permanent appointment, are educators who meet the following requirements:
5.2.1. Educators appointed in a temporary capacity and who, subject to clauses 5.2.2 to 5.2.5 will qualify for the immediate conversion to a permanent appointment to educators who meet the following requirements:
5.2.1.2 Educators will be absorbed if there is a vacant substantive post on the current post establishment of the institution/school, and have remained in the service of the department as a contract worker or substitute personnel after this collective agreement has come into effect. Qualifying educators are those who are appointed in a temporary capacity and have been continuously employed for a period of at least three (3) months in vacant substantive posts, growth posts, Dinaledi posts, against Promotional Posts and also substitute posts in the Gauteng Department of Education and
5.2.1.2 are registered with SACE, and
5.2.1.3 have minimum qualification of REQV 13; and
5.2.1.4 are appointed on post level 1.
5.2.2 A temporary appointment can only be converted to a permanent appointment if there is a Post Level 1 post available as a substantive vacant post and the temporary educator also meets the curricular needs of the school.
5.2.3 Appointments should be monitored to ensure that they are in line with Employment Equity provisions.
5.2.4 The temporary educators whose posts have been converted to permanent posts will be subjected to a problem period of a year (12 months) after being made permanent.
5.2.5 The conversion will be done in terms of the provisions of the Section 6(B) of the (E of EA), which provides for the Head of Department to convert the posts in consultation with the SGB”.
51. Circular 10 of 2014, 4 December 2014 provides that:
5. “Principles for the conversion process of contract (temporary) post level 1 educators into permanent appointments
5.1 Posts to be utilized must be vacant substantive posts on the approved post establishments (if not yet filled/utilized) as well as any other substantive posts that are not currently filled in a permanent capacity, as outlined in the procedures. This will include posts in which educator’s transfer/retire/resign.
5.2 Details of all such vacant posts indicated in (5.1) should be submitted to the Department on Form GDE 79 (Annexure D), together with Form GDE0001 (Annexure B) and all supporting documents regarding the educator/education therapist meeting the minimum requirements as per conversion criteria.
5.3 Educators eligible for the conversion of their appointment from contract to permanent are those:
(a) who are appointed in a (contract) temporary capacity;
(b) that have been continuously employed for a period of at least three (3) months;
(c ) appointed in vacant substantive posts, growth posts, Dinaledi posts, against Promotional Posts and also substitute posts in the Gauteng Department of Education; and
(d) that will be appointed if there are vacant substantive posts in line with the needs of the school.
5.4 This will exclude foreign nationals who are not in possession of a permanent residence permit and are in possession of a green bar coded South African ID book, appointed in substantive posts but will include educators who had been granted the VSP previously and have obtained permission from the HOD for re-employment.
6. Procedure to followed for the conversion of eligible contract (temporary) post level 1 educators into permanent appointments
6.1 The Gauteng Department of Education will embark on the conversion of eligible (temporary) contract Post Level 1 educators/education therapists after the placement of educators additional to the approved Post Establishment of the current academic year.
6.2 Neither educators nor education therapists appointed in a contract (temporary) capacity may be converted into permanent appointments where there is no vacant substantive posts on the approved Post Establishment of the specific academic year, and must be advised of the termination of their appointments at the end of each quarter of the academic year.
6.3 Educators or education therapist appointed in a contract (temporary) capacity will only be converted to permanent if:
(a) there is a vacant substantive post available on the approved Post Establishment of the current academic year, and have remained in the service of the Department as a contract employee after the approval of this circular;
(b) they meet the requirements as per the Employment of Educators Act, 1998, as well as the circular needs of the institution”.

52. Collective Agreement No 4 of 2018, 25 September 2018 provides that:
4. “The conversion of temporary educators to permanent educators:
4.1 Application
This paragraph applies to temporary educators who are appointed on a fixed-term contract to a funded substantive and vacant level 1 post at a public school that is on the approved educator establishment it does not apply to temporary educators who substitute permanent educators who are, for whatever reason, absent from their posts.
4.2 Eligibility for conversion
4.2.1 A temporary educator may only be appointed permanently to 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 3 months at the time of the 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 a 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.
4.3 Requirements
4.3.1 A temporary educator may only be appointed permanently to a funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment.
4.3.2 A temporary educator may only be appointed permanently by such a post if the post cannot be filled by:
4.3.2.1 Permanent educator who qualified for the post who is in addition of the educator establishment;
4.3.2.2. first time applicants whom the employer has a contractual obligation to appoint in terms of the bursary awarded to the applicant; or
4.3.2.3 any other first-time applicant; and
4.3.2.4 the temporary educator is not excluded in terms of the provisions of paragraphs 4.3.3 to 4.3.5 of this annexure.
4.3.3 The conversion of temporary educator to a permanent educator may be refused if:
4.3.3.1 the conversion will result in a contravention of the principles of equity, redress and representativity and the democratic values and principles referred to in section 7 (1) of the Employment of Educators Act;
4.3.3.2 the Head of Department decides to follow the normal recruitment and selection processes;
4.3.3.3 the temporary educators appointment was because of a temporary increase in the volume of work which is not expected to endure beyond 12 months; and
4.3.3.4 the procedure specified below have not been complied with.
4.3.4 Unless the Head of Department determines otherwise, a temporary educator may not be converted to a permanent educator if the temporary educator was previously employed as a permanent educator and the educators permanent employment was terminated as a result of early retirement, ill-health or voluntary retrenchment where the educator received a severance package.
4.3.5 The department may refuse to consider the conversion of the temporary educator to a permanent educator during the 90-day period following the departments determination of the educator establishment of public schools.
4.4 Conversion Procedures
4.4.1 The following procedure must be followed with regard to the conversion of a temporary educator to a permanent educator.
4.4.2 The school principal must submit in writing to the Department’s district office;
4.4.2.1 the profile of the funded, substantive and vacant level 1 post at the school which is occupied by a temporary educator who qualifies for conversion; and
4.4.2.2 all relevant information showing that the temporary educator qualifies for conversion.
4.4.3 The school principal and the governing body must submit written confirmation to the department’s district office that there are no educators referred to in paragraph 4.3.2 of annexure A who could be appointed to that post.
4.4.4 The department must then consider the conversion.
4.5 Non-favourable treatment
Subject to the provisions of the Collective Agreement and Section 6B of the EEA, no educator shall be treated by Provincial Education Department less favourable 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”.
53. With the evidence before me, the Applicant was employed on a temporary fixed-term contract against a promotional post from 1 January 2021 until 31 May 2022, and it was clear that the Applicant worked for a period greater than 3 (three) months.
Collective Agreement No 4 of 2018 provides that “temporary educators who are appointed on a fixed-term contract to a funded substantive and vacant level 1 post at a public school that is on the approved educator establishment it does not apply to temporary educators who substitute permanent educators who are, for whatever reason, absent from their posts”.
54. In these circumstances, the Applicant was appointed in a temporary role against a promotional post and not against a “funded substantive and vacant level 1 post”. The Collective Agreement No 4 of 2018 and the Collective Agreement 1 of 2014 both provide that the position must be against a “vacant substantive post”.
55. Circular 10 of 2014 provides that educators “will be appointed if there are vacant substantive posts in line with the needs of the school”. The Respondent submitted that there were no vacant available substantive posts at the time that the HOD resumed his position in the role in June 2022. Therefore, with the evidence before me based on the curriculum needs of the Respondent and with the Applicant’s specific circumstances there were no vacant available substantive positions for the Applicant at the time that his fixed-term (temporary) contract had concluded.
56. It is therefore my finding that the Applicant would not qualify to be permanently appointed in line with the provisions of the Collective Agreement No 1 of 2014, Collective Agreement No 4 of 2018 and Circular 10 of 2014.
57. In line with the above provisions, I am of the view that the Applicant was not unfairly dismissed, and the Respondent correctly complied to the provisions of the Collective Agreement No 1 of 2014, Collective Agreement No 4 of 2018 and Circular 10 of 2014.
58. I accordingly make the following Award:

Award
59. I find that the dismissal of the Applicant, Mr Tshepo Teleko, by the Respondent, Gauteng Department of Education was substantively fair. Furthermore, that the Respondent, Gauteng Department of Education, correctly applied the provisions of the Collective Agreement No 1 of 2014, Collective Agreement No 4 of 2018 and Circular 10 of 2014.
60. The matter is dismissed.

Thus, signed and dated on the 16 November 2022.

Leanne Alexander
ELRC Panelist