ELRC690-23/24GP

Panellist: Themba Manganyi
Case No.: ELRC690-23/24GP
Dates of Hearing: 15 March 2024
Date of Arguments: 19 March 2024
Date of Award: 26 April 2024

In the Arbitrator Hearing between

SADTU OBO EPHODIA KGAPYANE PHASHA APPLICANT

and

EKURHULENI EAST TVET COLLEGE EMPLOYEE

Applicant’s representative: Mr Reginald Mokone

Respondent’s representative: Mr Jacob Molefe

Details of hearing and representation

1. SADTU referred an interpretation and / or application of a collective agreement dispute on behalf of Ms Ephodia Kgapyane Phasha (“the Applicant”) to the Education Labour Relations Council (“the Council”). The arbitration proceedings were conducted on 15 March 2024 via Zoom virtual platform.

2. Mr Reginald Mokone (“Mokone”), a SADTU official, represented the Applicant and Mr Jacob Molefe (“Molefe”) represented the Respondent, Ekurhuleni East TVET College.

3. Parties submitted bundles of documents into the record and the contents thereof were not in dispute. Parties were allowed to call witnesses and to cross-examine them. At the end of the proceedings, parties agreed to submit their written heads of arguments on 19 March 2024, and they duly complied. The proceedings were digitally recorded, and the recording thereof was retained by the Council.

Issue/s to be decided

4. I am enjoined in these proceedings to determine the interpretation and / or application of Collective Agreement no 2 of 2013.

Background

5. The Applicant has been in the employ of the Respondent since September 2015 to date as a Lecturer. The Applicant was employed on fixed-term contracts that were renewed on an annual basis. The Applicant contended that in terms of Collective Agreement no 2 of 2013 she was supposed to be made permanent after having completed twelve (12) or more months of continuous employment with the Respondent. On the other hand, the Respondent contended that the Applicant was employed in terms of section 198B (4) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended.
Survey of evidence and arguments

The Applicant’s case
6. Only the Applicant testified in support of her case, and she testified under oath. In summary, she stated that she was employed on 16 September 2015 at Ekurhuleni East TVET College. She stated that she has been employed on a continuous basis since her employment.

7. Under cross-examination, she stated that her initial contract was from 16 September 2015 to 3 December 2015. She submitted that she was informed that her contract will be renewed in January 2016. In January 2016, she applied for re-employment. Her application was successful, and she started working at Benoni College around February 2016. She stated that her understanding of a fixed-term contract was that it was for a certain period. She confirmed that she signed the contracts in acceptance of the offer and the contracts were signed without any duress. She disputed that the college did not have any obligation to appoint her permanently and stated that she believed that if she was employed for more than twelve (12) months, she was supposed to be made permanent.

The Respondent’s case
8. Ms Lesego Boikhutso (“Boikhutso”), testified under oath and stated that she was the Assistant Director HR employed by the Respondent and confirmed that the documents from page 1 to 5 of the Respondent’s bundle were the request to advertise and appoint lecturers. There were sixty one (61) permanent posts that were advertised and amongst these posts, only two (2) were for English lecturers. She testified that nine (9) applications were received for the English posts and that the Applicant was one of the candidates that applied. She stated that the Applicant was shortlisted and interviewed. However, she was not successful. She testified that whenever there was a need to appoint lecturers, those lecturers will be appointed in terms of section 198B (4) of the LRA. She stated that the funded and vacant posts did not belong to an individual, but they belonged to the college.

9. Under cross-examination, she confirmed that the college belonged to the Department of Higher Education (“the DHE”). She reiterated that the Applicant was a fixed-term contract Lecturer. She confirmed that the Applicant was employed since 21 September 2015. She confirmed that she knew Collective Agreement 02 of 2013 and that the Collective Agreement was implemented on 07 March 2013. She was referred to several clauses in the agreement and read the clauses into the record.

Closing arguments

10. The parties’ heads of arguments are a matter of record. Therefore, I would not rehash or repeat them herein. However, I would refer to them in my analysis where necessary.

Analysis of evidence and argument

11. This is an award in terms of section 138(7) of the LRA emanating from an interpretation and / or application of Collective Agreement no 02 of 2013 referred by the Applicant to the Council.

12. It is common cause that the Applicant has been in the employ of the Respondent as a Lecturer since September 2015 and she has a continuous service record. It is common cause that the Applicant has served the Respondent in several colleges.

13. In the LAC judgement of the Western Cape Department of Health v Van Wyk & others the Court pronounced the salient principles for the interpretation of disputes as envisaged in section 24 of the LRA. The Court held that:

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.

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.

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.

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.

14. Frederick J. De Sloovere, Contextual Interpretation of Statutes, 5 Fordham L. Rev. 219 (1936) had this to say in interpreting statutes:

“Very often the obvious meaning is the correct one, but until one can say that it is the only sensible meaning, the statute has not been fully interpreted. At this point in the process the context must be studied so as to be sure there is no other equally justifiable meaning that the text will bear by fair use of language. Moreover, if the obvious meaning is not in accord with the meanings of other parts of the statute and with the subject-matter and purpose or reason of the statute, it is no longer persuasive. A statute is therefore only tentatively plain and explicit until the necessary interpretative techniques have been applied and a critical analysis of the meanings of all other parts of the statute or of other statutes in pari materia or of relevant common law doctrines confirms the obvious meaning so chosen. Hence, every statute must be interpreted in the light of (1) the subject-matter with which it deals; (2) the reason or purpose behind its enactment as found in the text and the evil toward which it was directed (including here extrinsic aids and the common law); and (3) the meanings of the several other relevant parts of the same statute or of statutes in pari materia. Likewise, the obvious meaning is not the correct one unless it is sensible. If then, the literal or obvious meaning is sensible and fulfills these several demands, any other conflicting meaning (contextual or otherwise) not meeting these essentials cannot be regarded as the proper one. Thus, the obvious or primary meaning - the one which is first gleaned by reading the statute in the light of the case to which it is to be applied - may not accord with the subject-matter, purpose or other parts of the statutes. If it does not, it is clearly inferior to any other meaning, contextual or otherwise, that does actually meet these tests, provided the latter is a meaning that the statute will justifiably bear by a fair use of language.'

15. Clause 4.1 of Collective Agreement no 02 of 2013 states that temporary or contract lecturers who have been employed on a continuous basis in the college establishment for a period of 12 months or more and are currently in a vacant funded substantive post will be made permanent. It was not in dispute that the Applicant has been employed for more than 12 months by the Respondent. Therefore, in my view, she meets the first requirement to be made permanent in her employment.

16. The second requirement for an employee to be made permanent is that the post must be a vacant funded substantive post. Boikhutso’s uncontested evidence was that out of the sixty one (61) posts that were advertised, there were only two (2) vacant funded substantive English posts and there were nine (9) English lecturers (including the Applicant) who were appointed on fixed term contracts. All these nine (9) lecturers applied for the two (2) available posts. They were all shortlisted and interviewed. The Applicant did not take an issue with the recruitment process that was followed in filling these two (2) English posts. Therefore, I will not take this matter any further.

17. The Applicant’s fixed-term contracts stipulates that she is appointed in terms of section 198B (4) of the LRA. Sub-section (4)(b) stipulates that the conclusion of a fixed-term contract will be justified if the employee that is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months. It was not disputed that the Respondent would from time to time have an increase in the registration roll. Thus, necessitating employment of extra lecturers who will be paid through the College Council Funds and those posts will not be classified as vacant funded substantive posts.

18. In my view, it was not the intention of Collective Agreement 2 of 2013 to blindly make temporary or contract lecturers permanent even when there were no vacant funded substantive posts. It is only in the event when there are vacant funded substantive posts that temporary, or contract lecturers would be made permanent after being employed for more than twelve (12) continuous months with the college.

Award

19. Collective Agreement 2 of 2013 should be interpreted to mean that a temporary or contract lecturer must meet two requirements before his / her employment status could be made permanent. These requirements are that:

19.1. the lecturer must have been employed for twelve (12) or more continuous months in the college establishment; and
19.2. the post must be vacant, funded and substantive.

20. As a result, I find that Applicant did not succeed to make out a case that Collective Agreement 2 of 2013 is applicable to her.

Arbitrator: Themba Manganyi