ELRC 303-22/23 NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

CASE NO.: ELRC 303-22/23 NW
In the matter between:-

SAOU obo HETTIE HANEKOM APPLICANT

and
DEPARTMENT OF EDUCATION-NW RESPONDENT


ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 23 September 2022
DATE OF AWARD: 23 September 2022

SUMMARY: Interpretation and application of the Collective Agreement

DEFAULT AWARD

DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 23 September 2022.The Applicant was represented by Mr J. Kruger, union official of SAOU. The respondent’s representative was absent. The absence was despite both representatives Mr Keetile and Ms Phuswane having been notified of this arbitration by email on 31 August 2022. Furthermore, the applicant’s representative had emailed the applicant’s bundle to them on 15 September 2022.

2. Prior to proceeding with the default, I requested the applicant’s representative to find out if they were not experiencing connection problems. The response was that they were not aware of the matter. I was satisfied that the respondent was properly notified of the hearing in accordance with clause 17.2.3 of the ELRC Constitution: Dispute Resolution Procedures of 26 May 2021. I proceeded with the default award.

BACKGROUND TO THE DISPUTE
3. The applicant referred the dispute of interpretation and application of the Collective Agreement on 28 July 2022. The certificate of the outcome of the conciliation was issued on 23 August 2022.

ISSUES TO BE DECIDED

4. The issues to be decided are whether the respondent had failed to apply the
Collective Agreement 4 of 2018 “ Collective Agreement” properly when it failed to absorb the applicant permanently and the appropriate remedy, should I find in favour of the applicant. The applicant seeks to be absorbed permanently to the position that she holds.

SUMMARY OF EVIDENCE

5. Johan Kruger testified that the respondent had failed to apply cluse 4.2.1 of the Collective Agreement when it failed to absorb the applicant permanently. Clause 4.2.1 provides that “a temporary educator may only be appointed permanently to a funded, substantive vacant level 1 post at public school which is on the approved educator establishment”.

6. The applicant has been employed on a temporary position for a continuous period of 3 years. She is a qualified educator for the permanent post. She is registered with SACE and she is South African citizen. She is fit and proper as contemplated in the Immigration Act 13. The substantive post is available at the school. He referred to Annexure A,E and F, the Collective Agreement, Immigration Act 13 of 2002 and Staff Establishment respectively.

7. Hettie Hanekom testified that she was appointed on 01 January 2019 in a substantive vacant post at Laer Skool Unie Primary to date. Her employment contract is renewed every in January. She meets the requirement for the post. She has a BA degree, intermediary and senior phase; she is registered with SACE, she is a South African Citizen. She has 6year Grade R experience. The substantive post is vacant. She referred to annexures B, C ,D and F, her service record, Qualifications , SACE certificate and staff establishment respectively. She prays to be absorbed permanently.


ANALYSIS OF EVIDENCE
8. The applicant bears the onus to prove that the Respondent had failed to comply with the Collective Agreement as contemplated by Section 24 of the LRA. The Respondent bears the onus to rebut the applicant’s testimony by proving that it had complied with the Collective Agreement. The respondent had waived its right to prove that it had complied with the provisions of the Collective Agreement. Therefore, my determination will be based on the unchallenged evidence presented before me.

9. Clause 4.1 of the Collective Agreement provides that the appointment and conversion of temporary educators Annexure A sets out:
4.1.1 the procedure for appointing temporary educators to a funded, substantive and vacant level1 post at a public school;
4.1.2 justifiable reasons for the appointment of a temporary educator;
4.1.3 factors to be considered when deciding whether a temporary educator
had a reasonable expectation as contemplated in section 186 (1) (b) of
the LRA;
4.1.4 the requirements, eligibility, procedures and other provisions
relating to the conversion of temporary educators.

10. The applicant was able to establish that she is eligible for the conversion in terms of Annexure A clause 4.2.1, as she has been employed in a temporary capacity for a continuous period of more than three months, she has the academic qualifications for the post, she is registered with SACE and she is a South African citizen.
11. It is the applicant’s unchallenged evidence that she meets the requirements for permanent appointment in terms of clause 4.3 in that the funded substantive post is vacant level1 at the public school and that she is fit and proper as contemplated in the Immigration Act 13.

AWARD

I order that:

12. The respondent had failed to apply the Collective Agreement .
13. The applicant must enforce Annexure A of the Collective Agreement 4 of 2018 by
absorbing the applicant on a permanent post by 01 November 2022.

Signed and dated at Pretoria on this the 23rd day of September 2022

MG Rabyanyana

M.G Rabyanyana
ELRC Panellist