ELRC558-22/23WC

Case Number: ELRC 558-22/23WC
Commissioner: Nathalie Willemse
Date of Award: 05 July 2023

In the ARBITRATION between:
SAOU obo ANDA SMIT
(Applicant)
And
WESTERN CAPE DEPARTMENT OF EDUCATION: WCED
(Respondent)

Details of hearing and representation
1. This was an arbitration process between employee, SAOU obo ANDA SMIT (Hereinafter referred to as the Applicant) and employer, WESTERN CAPE DEPARTMENT OF EDUCATION: WCED (Hereinafter referred to as the Respondent).

2. The arbitration took place virtually (via Zoom) over 4 days respectively between December 2022 and June 2023.

3. The Applicant was present and represented by Mr. R. Baard, a Union Official from SAUO a registered trade union. The Respondent was also present at the proceedings and was represented by Ms. A. Blanker.

4. The proceedings were conducted in both English and Afrikaans.

5. The Applicant referred an Interpretation and Application of a Collective Agreement dispute in terms of the Education Labour Relations Council (ELRC) Collective Agreement No 4 of 2018 The Appointment And Conversion Of Temporary Educators To Posts On The Educator Establishment on 5 October 2022.

6. The matter was thereafter, set down for arbitration proceedings.

7. In terms of Section 138 (7) of the Labour Relations Act 66 of 1995 “LRA/The Act” “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 closing arguments by close of business on 19 June 2023. Both parties complied and the submissions were duly considered, what follows is a summary of what must be determined.

11. Both parties prepared paginated and indexed bundles of documents, throughout the arbitration the parties supplemented their bundles. As regards the status of the documents, the parties agreed that the documents were what they purport to be, however, they reserved the right to challenge the contents.

12. At the start of the sitting, parties were assisted in respect of narrowing the issues. Parties were also cautioned in respect of their respective evidentiary burden and onus in line with the narrowed issues and provisions of the Act.

The issues to be decided
13. The purpose of this arbitration is to determine the interpretation and application of a collective agreement relating to an application for conversion of a temporary educator to a post of an Educator. In addition, I am required to apply the appropriate interpretation in accordance with the provisions of the ELRC Collective Agreement No 4 of 2018 (hereinafter referred to as the CA).


The background to the dispute
14. It was common cause that the Applicant was employed on several fixed-term contracts as an Educator for EMS and Consumer Studies commencing in January 2018. She earned a net salary of R28 658-88 per month.

15. The Applicant was placed at the Lutzville High School (hereinafter referred to as the School) situated in Lutzville/Vredendal area, in the Western Cape.

16. It was the case of the Applicant party that on 1 March 2022 an Educator post was vacant on the Staff Establishment of the School. The Applicant alleged that she qualified for a conversion from temporary educator post to a permanent educator post in terms of the ELRC CA 4 of 2018. The School failed to make such an application to the Respondent WCED as the School did not wish to convert the Applicant.

17. The Applicant thus sought, as of March 2022, that she qualified to be converted to an Educator at the School in terms of the ELRC CA 4 of 2018.

18. In addition, it was the case of the Applicant party that they lodged several grievances to compel the Respondent to apply for her conversion. This was eventually done in September 2022. Thereafter the Respondent informed the Applicant that she did not qualify to be converted because she lacked the qualifications of a CAT Educator, which was according to the needs of the School.

19. It was common cause that the Applicant was not a CAT Educator andthe school advertised the vacancy for a CAT educator.

20. Subsequently, the Applicant received a termination notice effective December 2022. The Applicant received a SGB contract offer for 2023.

21. It was the case of the Respondent that the curriculum needs of the school played a vital role in the application for conversion for the Applicant. There was an interim need requirement of the school which the Applicant filled, in order for the school not to lose a vacant post on its Establishment.

22. It was further stated that the number of learners for CAT subject versus the number of learners for the EMS subject was vastly different and as such the needs of the School required the vacant post to be filled by a qualified CAT Educator. Great emphasis was placed on the South African Teachers Act of which its mandate and purpose is based on the needs of the learners and school.

23. Lastly it was confirmed that the Applicant had been on several contract posts with the Respondent since 2018. However not all the posts were vacant, and the Applicant was carried against a Post Level (PL) 1 Educator substantive vacant post, if that Educator was acting. It was also the case of the Respondent that when the post became vacant on 1 March 2022, there was a substantive vacant post,however the respondent elected to advertise the post for a CAT educator requirement. .

24. It was common cause that in 2021 a HOD was appointed Deputy Principal for the school. The HOD post was vacant which the Applicant was carried against.

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

Applicants Evidence:
The Applicant testified on behalf of her case. She testified under oath, and I summarized her evidence as follows:
25. Ms. Smit testified that: In January 2017 she commenced her employment with the School following a SGB post offered to her. Thereafter she moved into several contract posts from January 2018 to December 2021.

26. She stated that she was offered a contract post from December 2021 to December 2022 on PL 1 Educator. In 2022, she was informed by the Principal of the School that in 2023 she will return to her SGB post, following the changes at the school when a HOD Educator was appointed as Deputy Headmaster/Principal for the school.

27. Smit expressed that she was informed that due to the Operational Requirements of the school, she would return to the SGB post because the school required a CAT teacher. This triggered a grievance lodged on 5 October 2022.

28. She agreed that the school nominated her to be appointed as a PL 1 Educator for the period December 2021 to 31 March 2022 for subjects VBS (consumer studies) and EMS. The nomination form was sent to the Respondent for her appointment. She confirmed she signed the form, and it was submitted on 16 December 2021.

29. Smit testified that her appointment was later extended from 1 April 2022 to 31 December 2022. The extension was filed on 24 March 2022 and uploaded on 5 April 2022 to the Respondent. She confirmed that she signed it and was aware of the extension. The subjects listed on the extension was for CAT (RTT) however she never taught CAT.

30. It was her evidence that following her extension as a contract PL 1 Educator, she was entitled to apply for a conversion to a permanent PL 1 Educator in terms of the ELRC CA 4 of 2018. However, the school failed to apply for this conversion, which resulted in her lodging a grievance. She expressed that the school eventually agreed to apply for her conversion, which documents were submitted in term 3, on 29 September 2022.

31. She elaborated on the conversion process following a letter she addressed to the SGB to commence the conversion process. She completed an application to assist with the conversion dated 31 July 2022, which had her personal information; CV and qualifications. However, she received feedback that the SGB did not support the conversion application, nonetheless they still applied for the conversion of the Applicant. On 30 September 2022, the Applicant was informed that the Respondent declined the conversion application due to not being suitably qualified to teach CAT.

32. Smit testified that she disputes and disagrees with the statement of not being qualified to teach CAT. She holds a SAICE qualification to teach consumer studies and business studies. She stated that she should be converted to a PL 1 Educator because she qualifies to be converted.

33. The Applicant confirmed that the school has a CAT teacher, which was newly appointed at the school. She stated it was not fair to appoint a new teacher permanently.

34. During cross-examination: The Applicant agreed that she was appointed in a contract post since January 2018 and teaches consumer studies as a PL 1 Educator. She confirmed that she does not sit in SGB meetings and she was not aware of the school needs pertaining to the curriculum.

35. The Applicant agreed that she was not qualified to teach CAT, she applied for a conversion as a consumer studies teacher. She expressed that she was qualified to teach. She holds a National Diploma in food and beverage.

36. Nothing further emerged from cross-examination and there was no re-examination.

37. The Applicant closed her case.

Respondent’s Evidence:
Three (3) witnesses testified, under oath, in support of the Respondent’s claim, in summary to the following effect:
Witness 1: Mrs. Marlida Lombard:
38. Mrs. Lombard testified that: she was the principal of the school from 2008, she holds a 20-year tenure. She was familiar with the Applicant who commenced in 2017 in the consumer studies.

39. She led evidence on the school, she stated that the school was approximately 350km from Cape Town situated in a rural area, it was the only high school in the area with approximately 4 primary schools. The area mostly has farm owners; mine workers and farm workers as parents of the school. The school has 450 learners from Grade 1 to 12, it was greatly limited with space. A lot of the learners move into the working class and very few proceed to tertiary education.

40. She confirmed that she was aware of the Applicant’s conversion application, she personally was involved with the application. She was aware the application was declined.

41. Lombard gave some brief background to the needs of the school. She expressed that CAT was a very important subject for the learners. Not only would learners benefit greatly from the subject but for tertiary purposes as well. She stated that the area had a lot of mines, which would require the general knowledge and basics of math and computer sciences and would assist for job seekers. She stressed that the school had to assist learners to be employable after school and the SGB played a huge role with determining the needs of the school. She referred the hearing to minutes of the SGB where the needs of the school were discussed and subjects which were required at the school.

42. She further presented stats from the learner subject choices for Grade 10 in 2023, CAT had 72 learners and Consumer studies had 36. She confirmed that CAT was very important to the school and learners. It was a curriculum need at the school. She stated that the CAT teacher resigned in December 2021, this created an urgency to fill the position with a PL 1 Educator. In July 2022 the position was advertised for a CAT educator; they found a successful candidate and offered her a SGB positiont due to this ongoing dispute.

43. Lombard stressed that consumer studies was not a curriculum need or expectation at the school and as a result it was a SGB post which the Applicant filled. She stated the number of learners in that subject choice was very few in comparison to CAT for both 2022 and 2023 for Grades 10, 11 and 12.

44. She led evidence that this was mainly the reason behind the decline of the Applicant’s conversion application. She expressed that the Applicant was also not qualified to teach CAT. The Applicant did not meet the inherent and immediate needs of the school. If the Applicant was converted the fundamental function and subjects would be lost. She disputes that the Applicant was not being prioritized and that a new SGB teacher was prioritized despite the Applicant being with the school for a long time. She repeated her evidence on the importance of the school and learners’ needs and the lack of qualification by the Applicant to teach CAT, which was a need of the school.

45. Lombard gave background in terms of the vacancies and appointments. She stated that the Applicant’s appointment followed an SGB advert at the school in 2017 when the Applicant applied to teach consumer studies. Lombard confirmed there are five SGB appointees at the school in the different phases. When the WCED allocates a contractual/temporary PL 1 post because of the increase in learners etc. the school generally gives the SGB teachers an opportunity to get the contract post, in order to assist financially. She stated that it takes a lot of time to finalise a vacancy in terms of recruitment and therefore they give the SGB teachers an opportunity on the temporary contract post.

46. She testified that 2018 was the Applicant’s first temporary contract post and at the same time the school for the first time ever was allocated a Deputy Principal post by the Respondent. As a result, the school together with its SGB had to decide on the needs of the school.

47. The school decided to advertise the Deputy Principal post which meant that 2 of the HOD Educators had an opportunity to act as Deputy Principal over a period of 2 years. When the HOD stepped into the acting role, one HOD post would be vacant, and the Applicant was carried against that vacancy until the recruitment process was completed and an appointment was made. She confirmed that there was no PL 1 vacancy at that time. The vacancy was for the Deputy Principal position.

48. This gave the Applicant an opportunity to be placed in a temporary contract PL 1 in which she would get her same benefits. When one of the HOD educators stepped into the deputy principal acting role, the Applicant would be carried against that vacancy.

49. Lombard confirmed that one of the internal HOD’s was appointed as Deputy Principal and that HOD position became available. The HOD post was filled on 1 March 2021 with an internal PL 1 math teacher. This created another vacancy this time for PL 1. She testified that on 14 March 2022, the SGB met again to determine and plan around the needs of the school and the vacancy. However, the school had the CAT teacher resignation in December 2021, which created great challenges with the school roster for 2022. On 26 July 2022 the SGB decided to advertise the PL 1 post for a CAT teacher. They found a new graduate teacher, however they offered her a SGB post because of the pending dispute of the Applicant.

50. She testified that she was aware of the conversion application of the Applicant. A letter was addressed to the Respondent in which she was the author, she confirmed that the school was not supportive of the application for converting the Applicant. She referred to the SGB minutes to illustrate the needs of the school.

51. Lombard further expressed that the SGB and herself completed a nomination form A3 for the appointment of the Applicant for a temporary contract position PL 1 for the period 1 March 2022 to December 2022 for CAT requirement. On the form they explained that the previous PL 1 teacher was appointed to HOD role. The Applicant was not suitably qualified for the CAT PL 1 position because of her qualifications however the post will be advertised, and the Applicant would be gatekeeping in the meantime. She expressed that the newly graduated teacher was teaching CAT during this time in a SGB post and the HOD was teaching math and science, which was the PL 1 vacancy which the Applicant was carried against.

52. During cross-examination: Lombard confirmed that the Applicant was on contract positions since 2018 and that the Applicant was teaching consumer studies and EMS for the entire duration. The witness confirmed that other teachers taught math and CAT during the contract period. Lombard confirmed that there was no break in service during the contract period of the Applicant, when the contract ended the school would always request an extension until the recruitment process was completed and finalized.

53. Lombard confirmed that her evidence in relation to vacancies at the school, initially there was a deputy principal vacancy thereafter HOD vacancy and a PL 1 vacancy. However, during the contractual period with the Applicant, the Applicant was carried against the HOD (PL 2) vacancies, there was no PL 1 vacancy at the time (December 2021) and as a result the Applicant could not convert. Lombard later confirmed that as of 1 March 2022 a PL 1 vacancy was available because an internal math teacher was promoted to HOD. The Applicant was nominated to be extended on a contract post for PL 1, because of the lengthy recruitment process.

54. The witness agreed that she was aware of the ELRC CA 4 of 2018. She read for the record the Purpose of the CA:

PURPOSE OF THE AGREEMENT
The purpose of this agreement is to:
'1.1 regulate the appointment of temporary educators to posts on the educator establishment of public schools.
1.2 provide for the employment security of temporary educators; and
1.3 regulate the conversion of temporary educators to permanent educators

55. She confirmed that the school did not apply for the Applicant’s conversion, the Applicant applied herself. She stated that she was not supportive of the conversion of the Applicant, the Applicant did not qualify for the conversion because there was no vacant PL 1 post for the Applicant at the time and the Applicant did not have the qualifications to teach CAT which was a need for the school. She confirmed that the Applicant met the requirements insofar as being on contract for 4 years; granting an advantage opportunity to the Applicant.

56. She expressed that the school did not have enough posts available. She agreed that the Applicant may have had a reasonable expectation however the contracts signed had clear end dates attached to them and the Applicant was aware.

57. Lombard confirmed that the HOD vacancy was filled on 1 April 2022.

58. A timeline of events was put to the witness that on 16 December 2021 a nomination was sent to the Respondent for the Applicant’s appointment. She agreed that the contract was for a period of 3 months (January to March 2022). Thereafter there was the extension of the Applicant’s contract from 1 April to December 2022, she confirmed it was a long period because of the lengthy recruitment process.

59. The witness agreed as of December 2021 she knew the needs of the school; the learner subject choice for CAT and the need for a CAT teacher.

60. It was put to the witness that upon application by the school to the Respondent for the Applicant to be appointed as teacher and be carried against certain vacancies; the school knew that the need was for a CAT teacher rather than consumer studies and EMS. The witness agreed and stated that due to the lengthy recruitment process the Applicant was used for that extension on a temporary basis. The witness stated that she informed the Applicant of the plan and the school needs; she recalled saying that the system is unfair however the needs of the school and learners must be prioritized, this triggered the whole dispute.

61. Lombard confirmed that the grievance was lodged by the Applicant dated June 2022, this followed after the job advert for a CAT/RTT teacher.

62. It was put to witness that the school knew the needs for CAT but did something completely different by appointing and extending the temporary contract of the Applicant, which was not a need of the school. The school promoted the consumer studies need and created an expectation. The witness disagreed with the statement. She stated that the aim was not to promote consumer studies but for the recruitment process to be finalized for the advertised CAT position.

63. It was put to the witness that the Applicant was carried against a vacant PL 1 post. The witness disagreed. She expressed that it was PL 2 vacancy for the HOD post and the deputy principal vacancy. She later confirmed that the Applicant was in a PL 1 vacancy for a period of 2 months only.

64. It was put to the witness that her decisions were prejudicial to the Applicant, she disagreed and stated the needs of the school and learners must always be considered.

65. The witness agreed that the reasons the conversion was declined was because of the Applicant’s lack of qualifications to teach CAT. The witness further agreed that the application was for CAT. She agreed that in hindsight, they should have offered the contract position to a CAT teacher rather than the Applicant. She stated that the minute the Applicant’s contract was extended the Applicant qualified for a conversion however the school did not require a consumer study teacher.

66. Lombard stressed that the area required basic computer skills such CAT studies, the aim was to give learners basic education.

67. During re-examination: the witness agreed that the Applicant was in a substantive vacant position during April and December 2022, the needs of the school was to advertise the position for a CAT teacher and finalise the recruitment process. The conversion of the Applicant was declined because the Applicant did not meet the needs of the school, even though she qualified for a conversion. She stressed that the school struggles to get qualified teachers in a rural area.

68. Nothing further emerged from re-examination. The witness was excused.

Witness 2: Mrs. Prudence Maria Michaels:

69. Michaels testified that: she is the Assistant Director for Recruitment and Selection Institutional Base Educators. She stated that Institutional Based Educators are Educators based at a school. Her duties include the PL 1 conversion process; appointment of principals; deputy principals; HOD and PL 1.

70. She confirmed that the letter dated 29 September 2022 was the conversion letter from the school for the Applicant’s conversion. She led evidence of the conversion process. She stated that an educator on contract for 3 months or more or a new graduate (after 4 years degree) who qualified and wished to start teaching, may apply for conversion. The conversion is done by the school electronically on the e-recruitment system, which would create a profile for every educator. All personal documentation and qualifications are uploaded onto the system. When the educator wishes to apply for a post all the required documentation is already on e-recruitment. Positions are also advertised on the e-recruit. The system generates a CV, the school will upload 11 documents for a conversion or an advertised post. There is also provision for a verification certificate and whether the school and SGB supports the application.

71. Once all the documents have been uploaded a notification is sent to her department for their attention. If any documents are excluded, the application is disqualified. Her team consists of 3 officials, they would print the documents, verify all documents are attached; evaluate qualifications. Should the application be in order, her division would send an email to the Establishment Section to obtain confirmation that the establishment/school has a vacant funded post. The Establishment section would respond and confirm or decline. In the event it is confirmed the Establishment section would provide codes for the post. Thereafter an appointment letter is compiled. She gets to verify the pack of her officials to ensure that there is indeed a vacant funded post and all documents are in order. The appointment letter goes to the circuit manager and eventually the school to confirm appointment of the educator. Service Benefits are also informed.

72. In the event there is no vacant funded post or lack of qualifications by the candidate, or something is wrong, her division will also do a letter to the candidate stating unfortunately the candidate is not suitably qualified for whatever reason. The educator may be professionally qualified but may not be suitably qualified.

73. She emphasized that her division verifies that qualifications to teach a subject listed on the job advert or conversion is indeed in order and that the Educator is indeed suitably qualified for the role. The newly appointed graduates and bursary funded learners are encouraged and must also be verified. Vacant funded posts are critical. They also look at the school needs and subjects required at the school, which is decided by the SGB, principal and circuit managers. Her division does not get involved with the needs of the school; her division ensures compliance.

74. It was her evidence that there is a turnaround time involved, especially when there is a temporary contract in place with an envisaged end date.

75. She turned to the case of the Applicant’s conversion application. It was her evidence that the conversion application was declined, she was the author of the letter addressed to the Applicant. She confirmed that the application was received, and a verification certificate was annexed. She noted that the principal did not recommend the permanent appointment of the Applicant for the CAT position. The school was not supporting the conversion of the Applicant to a permanent teacher on the verification certificate.

76. She testified that her team still verified the application, information and Applicant’s qualifications and academic transcript versus the post requirement of the school. From the information they found the Applicant was professionally qualified to teach, however the academic transcript did not meet the post requirement need of the school. The Applicant had food beverage background and no CAT qualifications. In that case they could not agree with the Applicant. They agreed with the school that the Applicant was not suitably qualified to teach CAT which was the post requirement. The Applicant was professionally qualified to teach consumer studies but that was not the post requirement of the school.

77. Michaels expressed following their verification, they did not proceed to request Establishments if there was a vacant funded post. They addressed a letter to the Applicant dated 30 September 2022 stating that the conversion was not approved. She confirmed that she received the pack from her team she did her own verification of the pack and confirmed that the Applicant was not suitably qualified to teach CAT.

78. It was her evidence that it is not only about being professionally qualified to teach but the educator must be suitably qualified to teach the requirement needs of the school. It was her evidence that they do not determine the needs of the school, her expertise is to evaluate the application before her and ensure that it is compliant with the post requirements. The needs of the school are determined by the senior management of the school; SGB and circuit manager.

79. During cross-examination she confirmed that e-recruitment was launched 1 April 2022, she agreed that a different process was used in the case of the Applicant due to a transition process. The witness agreed that she was aware of the ELRC CA 4 of 2018 and how it sets out the conversion process.

80. The witness was asked to explain what was meant by ‘vacant’ post on the staff Establishment. It was put to the witness a vacant post was when there is no permanent educator appointed in that post. She stated that Establishment would need to confirm because she does not work with that. Her general knowledge would agree with the statement put to her.

81. She agreed that in terms of the CA 4 of 2018 for conversions there must be a vacant substantive position, which Establishment must confirm for her division.

82. The witness testified that a conversion application must have 3 signatures attached namely: SGB and Principal and Circuit Manager. The witness was questioned on the responsibility to ensure that the information provided in the conversion application was true and correct. She explained that the verification certificate has 3 signatures on. She explained that it was not her division’s responsibility to decide the curriculum of the school or the needs of the school. She cannot dictate what subjects are required for the school. From the conversion application she had SGB minutes to confirm the school needs. Her division will interrogate the application especially when the school disagrees with the application, the school must have a motivation with justifiable reasons and she was satisfied with the response.

83. It was put to the witness that the school provided her office with false information. They tried to reach out to her division by requesting a meeting to discuss the application. The witness was not able to respond. If the Applicant was disgruntled with the process a grievance must be lodged. She confirmed that she was aware of the grievance lodged by the Applicant to her subordinate dated 5 October 2022, however she was on leave and Ms. Koen was acting.

84. The witness agreed that her division are the champions of the CA 4 of 2018, she stated employee relations must investigate if there was any breach of the CA by her division. She disputes any irregularities for the non-conversion of the Applicant because the reasons the Applicant did not qualify for the conversion was because she was not suitably qualified for the post requirement and the lack of support from the school.

85. It was again put to the witness that the information provided by the school to her division for the Applicant’s conversion was false, because the nomination form by the school was for post requirement and subject need for consumer studies. The witness disagreed she stated that the extension form cited that the subject need was for CAT. The need may have differed, it does not mean the information was false or misleading.

86. It was put to the witness that the school failed to apply for the Applicant’s conversion timeously, if it was done the needs of the school would not have changed. She explained that they often encourage schools to comply. She confirmed that the Applicant was a temporary educator and in a vacant post but failed to meet the post requirements.

87. During re-examination: the witness disagreed that her division blindly followed the schools recommendation. She stated that they conduct their own verification.

88. Nothing further emerged from re-examination and the witness was excused.

Witness 3: Mr. Harry Arthur:

89. Arthur testified that: he was the acting Assistant Director: Establishment in the Recruitment Division. He explained that the Establishment division would receive a nomination for appointment as educator, his division would be tasked with determining whether the establishment/school has a vacant funded post to appoint the educator in. Establishment would be tasked with creating the post and informing recruitment that the establishment of the school did have a vacancy for the approval process to take place and Service Benefits to be informed.

90. He led evidence of the Establishment structure of the school in 2018 which gets issued to the school annually in August//September. He demonstrated for the record on the establishment structure of the school, the school was issued with 1 deputy principal post, which post the Applicant was carried against in 2018.

91. It was his evidence that in 2019, due to the increase in numbers of learners the school was allocated 1 growth post PL 1. The post was not permanent, if the school maintained the increased number the post would be made permanent. He explained that in 2019 the school had 1 deputy principal post vacant; 1 growth post vacant and 1 permanent PL 1 educator post vacant. The Applicant was carried against the deputy principal post and not in a PL 1 post.

92. He did elaborate that during the last 6 months of 2019 the PL 1 post was filled by the school and only the deputy principal and growth post was vacant.

93. Arthur expressed that in 2020 the growth post fell away. The deputy principal post was filled by an HOD, as a result the Applicant was carried against the HOD post. He explained that the HOD post was a vacant PL 2. The situation continued until December 2021.

94. He led evidence that in 2022 the establishment changed there was 1 PL 1 vacancy and 1 HOD vacancy. The HOD post was filled between April 2022 and December 2022. That left the school with 2 PL 1 vacancies. During this time the Applicant was carried against a PL 1 vacancy. He stated that the Applicant between 2018 and 2022 April, was carried against a PL 2 vacancy, which was a promoted post. The only time a conversion is accepted was when the educator is carried against her post level.

95. During cross-examination: the witness confirmed that when a nomination is received, his division must check if there is a funded vacant post, thereafter they must create the post and the appointment is made, he stressed the importance was to check if there was a vacant post on the establishment.

96. The witness expressed that the posts were not created for the subject purposes, it was created for the staff establishment of the school, the school may allocate the post for whatever the requirement is.

97. It was his evidence that the phrase “carried against” meant that the educator was not in the post; she is placed on a temporary post which is carried against a vacancy on the establishment. He elaborated on the hierarchy, that a HOD may act in a vacant deputy principal post; a permanent educator (PL 1) may act in a vacant HOD (PL 2) post and a contract teacher may act in a vacant PL 1 post. The educator may not be required to perform the task of the vacant acting role, they are merely carried against the vacant position. However, the educator will only qualify for conversion if the vacant position is in line with the post level, if she is carried against a higher or promoted post, she will not qualify for conversion. Similar to the case of the Applicant, the Applicant was carried against a promoted PL vacancy of HOD.

98. The witness agreed that the school may decide what they need, provided it was on the establishment, was a vacant and funded post and on the same PL.

99. The witness agreed that in 2019 there was a 1 PL 1 vacancy on the establishment. However, the Applicant was carried against the deputy principal post which was a higher PL. Arthur confirmed that during April and December 2022, there were 2 PL-1 vacancies, which the Applicant could have been carried against.

100. Nothing further emerged from cross-examination and re-examination.

101. The witness was excused, and the Respondent closed its case.

Analysis of evidence and argument:

102. The point that needed to be addressed before me was whether the Applicant was to be appointed in the PL 1 CAT vacant substantive position permanently, in terms of Collective Agreement No 4 of 2018.

103. 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”. Thus, my role was two-fold to interpret and to ensure the objectives of the LRA were met. In addition, the ELRC Collective Agreement 4/2018 incorporates, inter alia, fairness as a factor in the interpretation of the provisions of the agreement .

104. In accordance with the provisions of section 23 of the LRA, collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all .

105. The principles applicable to the resolution of such disputes are trite as restated in Western Cape Department of Health v Van Wyk and Others :
“(I) When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement;
(II) The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
(III) A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.
(IV) The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made .
(V) The “parole evidence” rule when interpreting collective agreements is generally not permissible when the words of the memorandum are clear.
(VI) Collective agreements are generally concluded following upon protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.”

106. From the above authority regard was had to each of the abovementioned elements.

107. All witnesses inclusive of the Applicant were found to be credible and reliable witnesses and a large amount of weight was placed on their evidence. Therefore, my role was to determine which of their respective views, if any, are in line with the meaning of ELRC Collective Agreement 4/2018 as interpreted.

108. Clause 4 of the ELRC Collective Agreement 4/2018 sets out the requirements for an application for conversion of an educator from temporary to permanent:

“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 can only be appointed permanently to such a post if the post cannot be filled by a:
4.3.2.1 permanent educator who qualifies for the post and who is in addition of the educator establishment.
4,3,2,2, first-time applicant to 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 4.3.8 of this Annexure.

109. From this Collective Agreement, it was evident that for the conversion of an educator, there are 4 requirements which had to be met. This was confirmed by both Mrs. Michaels and Mr. Arthur for the Respondent.

110. Notwithstanding, the few requirements set-out in the Collective Agreement; there was a further Eligibility provision for conversion set out in the ELRC Collective Agreement 4/2018:
“4.2.1. A temporary educator may only be appointed permanent to a funded, substantive and vacant position 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 Educator (SACE)
4.2.1.4. the temporary educator is a citizen or permanent resident of South Africa “.

111. In dealing with the evidence led before me and the relevant provisions it was my finding that the Applicant may have met some of those eligibility requirements set out in the ELRC Collective Agreement No 4/2018. The Applicant was indeed appointed in a (contract) temporary capacity from 2018, this was common cause before me and the Applicant has been continuously employed for a period of at least three (3) months from December 2021 to March 2022 in a temporary contract post, her contract was extended from 1 April to December 2022. Lastly the Applicant was registered with SACE and is a permanent resident of RSA. The applicant was indeed in a vacant substantive post (PL 1). Both Mr. Arthur and Mrs. Lombard conceded to this. That during April 2022 to December 2022, there was a vacant PL 1 post following the promotion of an educator to an HOD post.

112. However, it was my finding that in terms of both the requirement clause and the eligibility clause set out in the ELRC Collective Agreement 4/2018, the Applicant failed to meet the qualification requirement in relation to the vacant substantive post. The school stressed the needs of the school and that it was undisputed that the position was advertised as a CAT vacancy. The requirement by the ELRC Collective Agreement 4/2018 requires the educator to qualify for the post, this was supported by Mrs. Lombard’s evidence where she stressed the importance of the needs of the school.

113. The Applicant party attempted to discredit the importance of this requirement, but to no success, simply because the respective views, of the respondent’s witnesses, were found to be in line with the meaning of ELRC Collective Agreement 4/2018 as interpreted specifically clause 4.2.1.2 and clause 4.4.2 of the Collective Agreement No 4 of 2018, 25 September 2018 which provides that:
4. “The conversion of temporary educators to permanent educators:
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.

4.4 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.

114. This requirement was re-emphasized by both witnesses Lombard and Michaels who testified that the Applicant may have been professionally qualified to teach however the Applicant was not suitably qualified for the CAT position. The post in question was advertised as CAT vacancy Post Level 1, as per the extension nomination form completed by the school.

115. It was therefore my finding, that the ELRC Collective Agreement No. 4/2018 sets-out certain requirements and eligibility requirements for a conversion to take place, it explicitly expects of the educator to qualify for the advertised position or stated different to qualify for the CAT post in question as per the evidence before me. The intended “qualification” in my view, pertains to the needs of the advertised post requirement and in this case, the Applicant had to ensure that she had the necessary inherent qualifications for the advertised post requirement for CAT vacancy, in order to qualify for a conversion.

116. Consequently, it was my finding that the Applicant did not have the necessary qualification for the advertised CAT post vacancy and therefore would not qualify to be permanently appointed in line with the provisions of the ELRC Collective Agreement No 4/ 2018.

117. I accordingly make the following Award:

Award
118. I find that the Respondent, Western Cape Department of Education, correctly applied the provisions of Collective Agreement No 4 of 2018.

119. The matter is dismissed.

Thus, signed and dated on 05 July 2023.


Nathalie Willemse
ELRC Panelist