ELRC574-23/24 NC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC574-23/24 NC

In the matter between

PEU obo KENEILWE MARIA MOCWAGOLE Applicant

and

NORTHERN CAPE DEPARTMENT OF EDUCATION Respondent

PANELLIST: YOLISA NDZUTA

HEARD: 19 JANUARY 2024

DATE OF AWARD: 7 FEBRUARY 2024


SUMMARY: Whether the Respondent has breached Collective Agreement 4 of 2018 by not appointing the Applicant into a permanent vacant substantive post


ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me over zoom on the 19th of January 2024. During these proceedings, the Applicant, Mrs Keneilwe Macwagole, was represented by Mr BLD Tutubala of the PROFESSIONAL EDUCATORS’ UNION (PEU) while the Respondent, Northern Cape Department of Education was represented by Mr A Leboko.

2. The parties confirmed receipt of the notice of set down and there were no preliminary issues raised.

3. The parties provided that the matter was not complicated and that there was an agreement relating to the issue in dispute, issue to decided and the relief sought. The parties confirmed that they had their Pre-Arbitration minute was not signed however both adopted the submissions therein.

THE ISSUE IN DISPUTE

4. I am required to determine whether the Respondent as an employer has breached its obligation in terms of Collective Agreement 4 of 2018 in so far as to the non-appointment of the Applicant into a permanent vacant and substantive post.

THE BACKGROUND TO THE DISPUTE

5. In these proceedings the Applicant referred an unfair labour practice relating to the enforcement of a collective agreement.

6. The Applicant claims that she had occupied a vacant and substantive post since 2022 teaching foundation phase.

7. The Applicant further claimed that she was duly qualified to teach foundation phase and intermediate phase.

8. The Applicant also claimed that she ought to have been considered for appointment when there was a vacant and substantive post at the school wherein she had taught.

9. The Respondent challenged the Applicant’s claims in so far as her qualification and her right to be appointed (and converted) into a vacant and substantive post in terms of Collective Agreement 4 of 2018.


SURVEY OF EVIDENCE AND ARGUMENT

10. The applicant relied on the testimony of two witnesses being her own and that of Mrs Kies. The employer (respondent) called two witnesses to testify in support of its cases and a summary of the viva voce evidence is summarized herein below.

11. Mrs Mocwagole testified that:

11.1 She is a qualified educator that holds a Diploma in ABET, ACE specialising in Maths, BEd in Maths with Rhodes University and she is left with twenty (20) modules to complete her BEd in foundation phase with UNISA. She also holds a permanent registration with SACE.

11.2. She is qualified to teach three subjects namely Mathematics, English and Life Skills.

11.3. When she commenced working for the respondent, she had furnished her qualifications which were not challenged by the Department as an employer.

11.4. She had occupied several temporary vacancies at the employer, more specifically at the school in question (AB Kolwane Primary School). She commenced as a substitute teacher in the intermediate phase from 2016 until the end of the 2018 academic year. In 2018 she commenced tertiary studies at Rhodes University for a BEd-Intermediate Phase.

11.5. She had provided services teaching scholars in the intermediate phase in other schools which the department was aware of.

11.6. During her studies, she was providing services teaching scholars in the foundation phase at AB Kolwane.

11.7 Upon completion of her Bed- Intermediate Phase studies, she requested a transfer from the foundation phase teaching to intermediate phase considering her new qualification.

11.8 The principal (Mr Mhlungu) had promised to transfer her once there was a vacancy within intermediate phase. When two posts became vacant, she approached the principal and expressed her interest to apply but was advised by the principal that she did not qualify for any of the available posts.

11.9 She challenged the principal’s notion because she held the necessary qualifications.

11.10 In 2023, she went to the provincial office to enquire about her qualification and was advised that she did qualify to teach English and Mathematics. She was then referred to the circuit manager who convened a meeting with the parties to try resolve the matter.

11.11 To her knowledge, the post that she occupied in foundation phase was a vacant and substantive post. She occupied this post from 2019 until 2023.

11.12 She has not completed her BEd-Foundation phase degree as yet.


12. The latter testimony was challenged and the following was discovered during cross-examination:

12.1 Two intermediate phase posts became vacant in 2022.
12.2 The principal played a role in the placement of the Applicant into the Foundation phase vacancy.
12.3 There was a misunderstanding and misinterpretation by the principal of the Applicant’s qualifications.
12.4 When asked which post she was seeking to teach, the Applicant testified that she wishes to be converted to a substantive post for intermediate phase given her qualifications. She further confirmed that she is qualified to teach English and Mathematics as subjects in the intermediate phase teaching and learning.
12.5 When it was put to her that her qualification does not make her eligible to teach English, she referred to one of the modules in her qualifications being English.
12.6 When referred to a letter from the tertiary institution which confirmed the Applicant’s eligibility to teach Mathematics, the applicant confirmed that the tertiary institution did not mention English as a subject however also referred to the department’s own correspondence that confirmed her eligibility to teach English.
12.7 When asked why she did not request the tertiary institution to confirm her eligibility, she responded that she went to the department of education provincial offices as the employer.
12.8 When referred to the post details indicating the parameters of the vacant and substantive post which the Applicant was seeking, the applicant confirmed that given the parameters of the post she did not qualify for the post.
12.9 When asked whether the post was vacant at the time of her interest in the post, she confirmed that it was not vacant when she applied however when the post was advertised per the bulletin, she applied again.
12.10 When asked whether she qualified for the post upon its advertisement, she testified that at the meeting with the circuit manager it was agreed that the post profile would be changed to allow her to apply.
12.11 When asked about the legal requirements for conversion in term of the Collective Agreement, she confirmed that she knew the requirements.
12.12 When challenged about the meeting with the circuit manager, she testified that the circuit manager can confirm it given that the minutes are held by the circuit manager.
12.13 When asked whether she met the requirements for conversion, she maintained that she met the requirements although she was not occupying a post that was vacant and substantive that would be fit for conversion.

13. Mrs Kies testified as follows:

13.1. She is employed as an educator of the Respondent and recently appointed as the Department Head for the Foundation Phase at AB Kolwane Intermediate School.

13.2. She has worked with the Applicant and can confirm that she worked well with her as the Applicant performed well.

13.3. She was of the view that the Applicant qualifies for conversion.

13.4. Despite all attempts to resolve the dispute regarding the unpaid capped leave, the employer failed to process and settle same. At best she has been promised countless times that the processing and payment will be settled soon.

14. The latter testimony was challenged, and the following was discovered during cross-examination:
14.1 When asked to explain why she is of the opinion that he applicant is eligible for conversion, she reiterated that her opinion was based on the applicant’s performance.
14.2 When asked about the requirements for conversion and to which vacancy the applicant would have to be converted to, she testified that it would have to be a vacancy that she had been teaching in.
14.3 When asked if the applicant is qualified to teach and be converted in foundations phase, she agreed and referred that it would be due to the applicant’s qualifications from UNISA (tertiary institution).

15. The respondent called two witnesses namely Mr Mhlungu and Mrs Phelesi. Mr Mhlungu testified as follows:
15.1 He is the principal of AB Kolwane Intermediate School and has been the principal for the past nine (9) years.
15.2 To his understanding the dispute pertained the applicant’s wish to be appointed into the vacancy that she did not qualify for as per the post profile of the vacant post.
15.3 At the time of the post being advertised via the bulletin there was a suitably qualified temporary educator who was occupying the vacancy, and it was not the applicant.
15.4 At the time of the advertisement of the post, the applicant was teaching in the foundation phase teaching.
15.5 The applicant had served at the school on various temporary contracts as a temporary educator. Thereafter there was a directive that enforced that when an educator is placed in a vacancy whether temporary or permanent, that educator must match the post profile of the vacancy.
15.6 The applicant was not converted into foundation phase when the opportunity existed because she was still studying at the time.
15.7 The applicant had been granted a fair opportunity to compete when vacancies were advertised.

16. The latter testimony was challenged, and the following was discovered during cross-examination:
16.1 Upon the appointment of the applicant, the qualifications from UNISA were not disclosed.
16.2 When was asked about the meeting with the circuit manager, Mr Mhlungu referred to it as a briefing session and confirmed that he remembers the meeting however at the meeting the qualification in question was her tertiary qualification from Rhodes University.
16.3 When asked whether he sent the applicant’s results for evaluation, he responded that it was not his duty.
16.4 When asked to comment as to the applicant’s eligibility for conversion in terms of the statutory requirements in the collective agreement, he responded by stating that the applicant was not eligible because she was not qualified in that she did not meet the requirements although she was occupying a vacant post. Furthermore, the applicant was appointed due to her studies in foundation phase and not her intermediate phase qualification.

17 Mrs Pelesi testified as follows:
17.1 She is the Chief Personnel Officer at the department of education.
17.2 One of her duties include the conversion of educators from temporary to permanent educators.
17.3 In order for an educator to be converted, all the requirements must be met.
17.4 To her knowledge of the dispute and the applicant’s request for conversion, unfortunately the applicant does not meet the requirements for conversion as she did not satisfy the post. The latter was established when the tertiary institution was contacted to confirm the applicant’s qualifications insofar as to her suitability for the post which yielded a response that she only qualifies to teach maths intermediate phase.

18 The latter testimony was challenged, and the following was discovered during cross-examination:
18.1 The applicant was occupying a vacant and substantive post at the time of her application to be converted. Of importance is that at the time of requesting a conversion, the applicant was placed in a foundation phase post yet she wanted to be converted into an intermediate phase post.
18.2 When asked whether the applicant’s request was unique or not, she testified that she can’t assist in that there are many applications that she processes however she stated that when assessing a conversion, it is integral that a person must match the profile of the post they wish to be converted into.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

17. The applicant has referred an unfair labour practice dispute which relates to promotion/appointment which is established in law under section 186(2)(a) as:

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

18. I considered the applicant’s case and evidence from the latter perspective with due consideration to the collective agreement in question.

19. Before I address the testimony given, it is important to consider that the dispute before me related to the application and enforcement of collective agreement 4 of 2018. Also there was an issue pertaining the Applicant’s referral to her qualifications obtained from Unisa during re-examination. The latter was at the helm of this challenge is the legal question of whether one may refer to new evidence during re-examination. It is a well-established rule that re-examination is an opportunity to clarify and explain any matter that arose during cross-examination therefore is limited to evidence that has already been tendered. In S v Tandwa and Others [2007] ZASCA 34, 2008 (1) SACR 613 paras 117-120 the courts ruled that wherein the admission of certain evidence shall render the proceedings tainted and shall cause detriment to the administration of justice then such evidence must be excluded. It is on that basis that the referral to the UNISA qualification was refused. The latter is my ruling in relation to the admission and referral of new evidence during re-examination of a witness.

20. Returning to the applicant’s dispute, the applicant in her case claims that the respondent had transgressed a collective agreement. Correspondingly the applicant claimed that she met all of the requirements of applicable according to the collective agreement.

21. During the presentation of her case the applicant, Mrs Mocwagole, was certain that she duly qualified as an educator for the intermediate phase and met the profile therefore and ought to have been converted. However when asked about her compliance with the requirements she acceded to the argument that she did not qualify. My assessment of Mrs Mocwagole is that her testimony lost credibility when she contradicted herself in relation to the subjects she was qualified to teach. Her referral to her Unisa qualifications was an afterthought which was challenged. The latter have been addressed above.

22. Mrs Kies’s testimony did not assist in that her perception of what qualifies an educator for conversion was not reflecting an understanding of the collective agreement rather she was of the view that as long as one performs well and meets the requirements of a post then conversion would be applicable, a grave issue with that understanding is that it does not consider all the prescripts of clause 4 of Collective Agreement 4 of 2018.

23. My assessment of the testimony of Mr Mhlungu is that he was a credible witness as he did not depart from his version nor was there any contradictions in his testimony. Mrs Pelesi too presented evidence of a credible witness.

24. At the crux of this dispute is the applicant’s eligibility for conversion vis a vis the applicant’s qualifications. What cannot be disputed is that at the time of seeking conversion the applicant was not occupying the post to which she was seeking to be converted. More importantly as is apparent from the evidence, (confirmed by the applicant in cross-examination) is that she did not meet all the requirements of the post profile for the vacancy she wished to occupy. We therefore must consider whether the collective agreement applied to the applicant and thereafter we must consider whether there was compliance with the collective agreement or not.

25. Clause 4.2 of Collective Agreement provides the following insofar as the 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 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 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 1894), as amended.

26. Evidently the post in question was only vacant in October 2023 and it has been established in evidence that the applicant was not occupying the post in question at the time it became vacant. On the premise of the latter, the applicant was not eligible for conversion.

27. To address the next question of compliance, we are to consider the principles of substantial compliance therefore we are to refer to the SCA decision in Weenen Transitional Local Council v Van Dyk which considered the application and interpretation of delegated legislation. The court places that where there is an allegation of non-compliance with legislation by an authoritative party, said non-compliance must be clearly established (my interpretation). The applicant in this matter did not establish how the respondent transgressed the collective agreement.

28. I therefore make the following award.


AWARD

29. The Applicant has failed to prove that the Respondent had not complied with the Collective Agreement.
30. The applicant is not entitled to the relied sought.


Yolisa Ndzuta
Panelist: ELRC