ELRC975-21/22EC

Case Number: ELRC975-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 26 September 2022

In the matter between


NAPTOSA obo A. J. Philander
(Applicant)

And

Department of Education Eastern Cape
(Respondent)


Union/Applicant’s representative:

Mr Anton Adams



Telephone: 083 720 1354
Telefax:
E-mail: antona@naptosa.org.za

Respondent’s representative:
Respondent’s address: Mr Sakhiwo Kralo


Telephone: 073 292 4229
Telefax:
E-mail: Jikijwa046@gmail.com


Details of hearing and representation

1. The arbitration hearing into an interpretation or application of a collective agreement, referred in terms of section 24(5) of the Labour Relations Act 66 of 1995 (the LRA), was held virtually via Zoom on 14 July 2022 and face to face at the offices of Department of Education Eastern Cape on 09 September 2022.

2 The applicant, Ms A. J. Philander was represented by Mr A. Adams, an official from NAPTOSA, the Department of Education Eastern Cape, was represented by Mr S Kralo, an employee of the Education Department.

3 The hearing was held in English and was digitally recorded.

4 The parties agree to file heads of argument in writing by no later than 16 September 2022, both parties did so.


Issue to be decided

5. I am required to interpret the ELRC Collective Agreement No.4 of 2016 to determine whether it is applicable to the Applicant and if so, to determine the appropriate relief.

Background to the matter

6. The Applicant referred an Interpretation and Application dispute to the ELRC on 29 March 2022, whereafter the matter was conciliated on 29 August 2022 and a request to have the matter arbitrated was filed.

7. The parties concluded a pre-arbitration minute which was filed and sets out the issues that is common cause between the parties and issues in dispute.

8. It was common cause that the Applicant was employed by the Respondent on 12 February 2018 as a level 1 educator. She was identified as additional to the post establishment of Caritas Primary School.

9. The following issues were placed into dispute, whether the Respondent correctly implement the Collective Agreement on the Transfer of Serving Educators in Terms of Operational Requirement, ELRC Collective Agreement No.4 of 2016. Whether applied the Collective Agreement correctly when identifying and redeploying the Applicant to another school.

10. In terms of relief, the Applicant sought for the process to be redone in line with the Collective Agreement and that the Applicant be placed back in her original school until such time the process of identification has been finalised.


Survey of evidence

11. This is a summary and does not reflect all of the arguments heard and considered in reaching a decision.

Applicant’s evidence

12. The Applicants testified that she is qualified to teach intermediate and senior phase, she was teaching mathematics and science at grade 4. Intermediate phase includes grades, 4, 5 and 6, senior phase includes grade 7, 8 and 9.

13. At the time she was re-deployed, she had 3 years and 6 months experience with the school. Grade 4 had the least learners, and she was the last educator appointed to teach at grade 4, the school use LIFO in grade 4 to identify excess educators.

14. The Applicant further testified on page 17 of the bundle and states that there was a number of educators who were employed after her. She felt that she was incorrectly identified, her interpretation of the Collective Agreement is that the school should have applied LIFO, and not to identify a grade.

15. Under cross-examination, the Applicant confirmed that the agreement states that LIFO in a phase should be used, not within a grade.

Respondents’ evidence

16. Mr Barendse testified that he is employed by the Respondent as the Principal of Carita Primary School. During the two meetings regarding identification, it was decided not to use LIFO, but rather to consider the curriculum needs of the school. Grade 4 was identified as the grade with the least learners, and identification will always take place at intermediate phase as senior phase has more learners.

17. Grade 4 was identified, and the Applicant was identified, the method used to identify the Applicant was to identify the main subjects that need good educators, the subjects identified were Mathematics, Afrikaans and English.

18. There were 4 educators teaching those subjects and the Applicant had the least experience teaching those subjects. If the process had to be re-done, the outcome would remain the same.

19. Under cross-examination, Mr Barendse stated that they had to lose four educators, two were eliminated through other means and the 3rd was a deputy principal for whom a different process was used.

20. It was further confirmed that E Witbooi and De Jager who has the least experience was not selected because they teach across grades, and the Applicant was identified as she was not willing to do so, they decide to keep the educators who were willing to go the extra mile.

21. Ms Mcwabeni testified that she was the SADTU observer during the identification process and that they adopt curriculum needs as an identification tool.

22. Under cross-examination, Ms Mswabeni confirmed that page 14, paragraph 6 talks about phase and not grade.

23. Mr Jaggers testified that he was the NAPTOSA observer during the identification process and they did use phase and then grade within the phase. The Applicant was identified as she had the least experience within grade 4.

24. Under cross-examination, Mr Jaggers confirmed that the principal presented a presentation to them, and he did not show all grade 4 educators’ qualifications and experience. That number of learners are not curriculum needs.

Analysis and argument

25. The matter was referred to the Education Labour Relations Council (ELRC) in terms of section 24 of the LRA.
26. Section 24(2) and (5) of the LRA states that if there is a dispute about the interpretation or application of a collective agreement, any party to the dispute may refer the dispute to the Commission or Council for conciliation and arbitration.

27. It is common cause that the said Collective Agreement applies to the Applicant as she is an educator appointed in terms of the Employment of Educators Act, 1998, as amended.

28. I am required to interpret Collective Agreement 4 of 2016, transferring of serving educators in terms of operational requirements.

29. It is common cause that Caritas Primary School had a change in terms of their staff establishment in terms of their operational requirements and had to reduce the staff by 4 educators. What is in dispute was the school embarked on in identifying the educators that should be transferred.

30. Collective Agreement 4 of 2016 reads as follows with regards to the identification of educators in addition:

“B.6.4.2 After considering B.6.4.1, the Circuit/District Manager together with the Principal shall identify the educators in addition, taking into account the following:
B.6.4.2.1 The views of the educator staff of the institution as expressed at a formal meeting convened by the Principal;
B.6.4.2.2 The needs of the institution, more particularly in relation to its specific curriculum obligations, the number of classes, the timetable and the allocation of learners to classes;
B.6.4.2.3 The Circuit/District Manager shall take cognizance of the fact that there is not necessarily a direct relation between the post identified as in addition and an educator who will be declared in addition, as there may be more than one post with substantially the same duties attached to it;
B.6.4.2.4 If a decision has to be taken regarding two or more educators competing for the same post, the principle of “last in, first out” LIFO shall be applied. An educator’s service period for the application of LIFO shall include all continuous service rendered at any public education institution.
B.6.4.2.5 One representative per trade union party to teh ELRC shall be invited by the District/Circuit Manager to observe the process.”

31. Du Toit et al in Labour Relations Law highlight consideration when interpreting collective agreements as follows:
• “Where the wording of the agreement is clear and unambiguous, the parties may not rely on evidence beyond what is embodied in the document to demonstrate their intentions at the time it was concluded (the so-called parol evidence rule),
• The words in the agreement must be given their ordinary grammatical meaning and must be interpreted in the context of the agreement as a whole; and
• Where words are unclear or ambiguous, regard may be had to the circumstances surrounding the agreement such as previous negotiations between the parties, correspondence between them and the manner in which they acted on the document.”

32. Evidence was led that the identification criteria to identify additional staff would be the curriculum needs of the school. Clause B.6.4.2.2 makes provision for same as it include curriculum obligations, the number of classes, the timetable and the allocation of learners to classes.

33. What then transpired was that grade 4 was identified as the grade with the least number of learners. It was then identified in terms of Curriculum needs that Mathematic, Afrikaans and English were the main subjects that needs experienced educators. The Applicant was identified as the educator with the least experience.

34. Clause B.6,4.2.4 of the collective agreement reads that if a decision has to be taken regarding two or more educators competing for the same post, the principle of LIFO shall be applied. It was established through evidence that there were more than one educator that competed for the post and that the Principal used criteria such as commitment and willingness to identify the Applicant.

35. If one correctly interpret the collective agreement, it states that if more than one educator competes for the same post, LIFO shall apply. The word “shall” does not give an option or alternative to any Principal, it simply means that LIFO is the only method to select between educators competing for the same post.

36. It was established that the Principal failed to apply LIFO in this instance and failed to apply the collective agreement correctly. It was established that there were other educators with less experience than the Applicant.

37. It was argued that a decision to redo the process will be a futile exercise and not in the best interest of the learners. I cannot agree, when embarking on serious decisions such as these impacting the lives of the effected persons, one must be extra vigilant to follow a fair process that is objective and transparent, and refrain from any subjective views as in this instance.

38. The fact that the Principal failed to submit the profile of all educators to the panel limit the panel to apply LIFO. It was argued that LIFO was not used at all, and on that very basis, the Respondents case must fall as it was a requirement when more than one educator competes for the same post.

39. In this instance there must have been more educators who competed as the Principal relied on criteria such as commitment between educators as criteria.


40. In light of the above, I find it appropriate to make the following award.


Award

41. The decision to identify the applicant, Ms A. J Philander as an addition to the staff compliment of Caritas Primary School, by the Respondent, The Education Department- Eastern Cape is set aside.

42. The Respondent is directed to redo the identification process with regards to the post for a fresh decision.


Signature:


Commissioner: HENK JACOBS