Commissioner: Lanthis Taylor
Case No.: ELRC485-26/27WC
Date of Award: 30 September 2026
In the Arbitration between:
NAPTOSA obo Nemcial Lavinne Knecht
(Union/Applicant)
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)
Union / Applicant’s representative: Mr. Ockert Van Niekerk & Ms. Knecht
Respondent’s representative : Mesdames. Liezle Diedericks and
Abigail Blankner (WCED Representatives)
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
- An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 18 September 2026 by way of the virtual platform, Microsoft Teams. The applicant, Ms. Nemcial Lavinne Knecht was represented by Mr. Ockert Van Niekerk of NAPTOSA. Mesdames. Liezle Diedericks and Abigail Blankner represented the respondent, the Department of Education – Western Cape. The proceedings were conducted in English and were digitally recorded.
BACKGROUND TO THE ISSUE - The issue before me relates to the applicant’s claim of non-payment of salary for the period 1 May 2026 to 31 July 2026. The parties had concluded a pre-arbitration process, and a signed minute was submitted into evidence. Despite this, we narrowed the issues further as it became clear that there were some errors or omissions emanating from these minutes. It was thus agreed that some of the issues listed as being in dispute were in fact common cause between the parties. The primary issues for my consideration are where the respondent states that the applicant was not contracted to work and as such was not entitled to payment claimed.
- The applicant states that she was contracted by way of the nomination process and that she rendered services and should be paid for such. It was not disputed that she indeed rendered services for the period in question. As a lead-in to the period in question, it was agreed that the applicant was appointed in a temporary capacity in place of a retiree in April 2025 on fixed term contracts with the first ending on 30 November 2025 and a further contracted period being from 1 December 2025 to 30 April 2026. It is common cause that the applicant was paid up till 30 April 2026 and was again appointed “officially” as of 1 August 2026.
THE ISSUES THAT ARE TO BE DETERMINED
4. I have to determine whether the applicant was authorised to fulfil the duties of a foundation educator and whether she is entitled to payment for the services that she rendered.
5. Most of the elements to this dispute are common cause. Initially the applicant’s representative requested that the dispute be considered on the documentary evidence that the parties had submitted. The commissioner, however, preferred the leading of evidence in respect of the dispute given that the respondent contended that the applicant worked without the necessary authorization.
SUMMARY OF THE EVIDENCE & ARGUMENTS:
6. Both parties presented bundles of documents in support of their versions. In this arbitration before me, the applicant testified on her own accord while the respondent was directed to call the two relevant witnesses, Lowellen Appies, the Circuit Manager and Peter Sam, the School Principal. I am required by the LRA to provide brief reasons to substantiate my findings and determination in this dispute. As such despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.
7. By agreement with the applicant’s representative, I adopted an inquisitorial approach to hearing her version of events and I adopted a part-inquisitorial approach in respect of the respondent’s representative. All the witnesses testified under oath, and, for ease of reference, the relevant aspects of their respective testimonies will be dealt with under the analysis, hereunder.
ANALYSIS OF EVIDENCE AND ARGUMENT
THE APPLICANT’S CASE
8. The applicant, Nemicial Lavinne Knecht, testified under oath that she was appointed on a fixed-term contract from 1 April 2025 which was renewed and ended on 30 April 2026. She stated that she continued working at the behest of the principal based on a nomination form which was submitted for May to December 2026. The school secretary dealt with the nomination form. She stated that the WCED does not issue contracts. The contract is based on the nomination form that is submitted.
9. Knecht stated that when she did not get paid at the end of May 2026, she engaged the principal. He told her that he was waiting for the Circuit Manager to liaise with the WCED. This same response was relayed to her in June and July 2026 after she had not received payment. She thereafter escalated the matter to her union.
THE RESPONDENT’S CASE
10. The respondent called its witness, Lowellen Appies, the Circuit Manager of Circuit 7, to testify. He acknowledged that there was email correspondence sent to him from Vuyiseka Mqalo on 29 May 2026 with the subject line being NL Knecht 55590641-St. Matthews Prim which directed him to advise the principal as follows: “Can the message be conveyed to the principal that the is no post for the above-mentioned educator at the school, due to LL Swartz 59578955 who is in excess at the school. If Swartz was matched and placed somewhere else can the letter be provided to us please.”
11. Appies stated that he could not place Swartz as he was not suitably qualified for the foundation phase despite being in excess and despite circular 0021/2025 which stipulated that an advertised post (PLs 1-3) may only be filled if there is no educator declared as in addition (in excess) to the educator establishment in terms of Education Labour Relations Council (ELRC) Collective Agreement No. 4 of 2016, dated 23 August 2016. He stated that the curriculum needs required a foundation phase educator which Swartz was not suitable to fill. Appies stated that he had advised the principal that no post existed as per the email communication that he had received from Vuyiseka but still contended that Knecht was appointed due to the curriculum needs. According to him, she was appointed in the 2nd quarter in a growth post effective from 1 April 2026.
12. He stated that he did not ask Knecht to continue working but stated that he signs off the nomination forms for educators including hers. When questioned about the funding for Knecht’s appointment, he stated that he had thought about that, but he was not sure how he could have placed Swartz against the curriculum needs of the school. He had discussed the curriculum needs of the school with the principal. When questioned about Knecht being allowed to work, he stated that he only became aware of this when she was not paid, and the principal informed his office of this.
13. During cross-examination, he stated that when the principal informed him of the applicant not being paid, he contacted head office whose response was that Swartz was in excess. He stated that he had informed the principal that the applicant was working without authorization. The principal responded that the curriculum needs lay in the foundation phase. Appies confirmed that the form “Request to deviate from using the excess list to fill a substantive vacant post” indicated that there were no excess educators and that both the district and provincial excess lists had been consulted and that he, the principal and the District Director had signed the document.
14. The respondent called its second witness, Peter Sam, the principal of the St Matthews Primary School. He testified under oath that the correspondence sent to the circuit manager confirmed that there was no post available at the school for Knecht. He confirmed that he was aware that Swartz was in excess to the staff establishment. He stated that he could not recall being informed by Appies that there was no post for the applicant. He was referred to Circular 0021/2025 and confirmed that he understood paragraph 8.3 which stipulated that that an advertised post (PLs 1-3) may only be filled if there is no educator declared as in addition (in excess) to the educator establishment in terms of Education Labour Relations Council (ELRC) Collective Agreement No. 4 of 2016, dated 23 August 2016.
15. Sam testified that Knecht was allowed to work at the school as she had started in the post of Ms. Visagie in 2025. In 2026, her appointment was based on the needs of the school. She was on the system for the first term and documents were uploaded for the second term. He could not say how she was going to be paid for the three-month period of the second term. He confirmed that the school had been allocated a growth post from 1 April 2026, but this had been filled by Ms. Loots. Ms. Knecht was again appointed on 1 August 2026.
16. During cross-examination, Sam confirmed that Swartz was not suitable for the foundation phase. He confirmed that the circuit manager had advised him around the end of May 2026 that as per the correspondence from Vuyiseka, there was no post available. He further confirmed that Loots had been appointed into the growth post which had been applied for. He was not informed by Appies that there was no post available prior to 1 May 2026. Sam stated that the circuit manager had signed off the nomination forms on the PMPS system. He confirmed that he was aware of the deviation form and that the form indicated that there was no excess staff at the school and that they had looked at the excess at the school and in the province. He further confirmed that this document had been signed by himself, the circuit manager and the district director and confirmed further that it contained an incorrect declaration.
17. Sam stated that the applicant was removed from the PMPS system for the second term of 2026. He engaged the circuit manager, Mr. Appies who stated that he had followed up with the department but there was no response. The applicant continued to render services based on the school’s needs.
FINDING
18. Both Appies and Sam contradicted themselves and each other on several occasions and were not credible witnesses. Appies stated that he had informed Sam about the situation after receiving the email from Vuyiseka whereas Sam claimed that Appies had not informed him. Both Appies and Sam appeared uncertain of the contracted period that Knecht was engaged for. What is interesting is that both Appies and Sam acknowledged the circular 0021/2025 contents relating to excess staff yet saw fit to ignore the outlined protocols. Both appear to be of the belief that by just uploading a nomination form, there is an automatic acceptance by the Department without any form of contract per se. While this may be a standard practice, there generally would be some form of confirmation of the nomination sent to the school and the educator.
19. While it is that there may have been a curriculum requirement for a foundation phase educator at the school, it is also evident that the necessary protocols were not followed by both Sam and Appies. This is evidenced by the deviation form not being accurately completed. Both Sam and Appies testified repeatedly that Swartz could not be placed in line with the school’s needs or elsewhere. This should have been more reason to motivate a deviation from the set procedures due to, as both witnesses put it “the curriculum needs of the school”. They did not do so and instead submitted inaccurate statements on the deviation document which created a skewered picture.
20. There is no doubt that the applicant rendered services. She submitted time and attendance sheets for the period claimed and the WCED acknowledged that she rendered services. The Department’s argument is that she did so without authorization and as such she is not entitled to remuneration. The WCED is very misguided in its approach. A school principal and a Circuit Manager are within the managerial structures of the WCED and have more defined roles than mere ordinary PL1 teachers or Departmental Heads. By way of delegation of authority from the HOD, persons in these positions are afforded a certain level of authority in the management of staff and the initiation and overseeing of the administrative component of the engagement of staff. In this instance, both Appies and Sam were acting in the mandate of their positions on behalf of their employer, WCED. Both allowed Knecht to continue working for an additional two months despite being advised that there was no post at the school for her in the email correspondence from Vuyiseka on 29 May 2026 and on 17 June 2026.
21. Despite attempts by both Appies and Sam to distance themselves from any responsibility and accountability in the arbitration process, both allowed the applicant to work without either of them ensuring that the necessary authorization was in place. The respondent, the WCED, cannot shirk its responsibilities because its management acted outside of their scope or failed to ensure that the necessary authorization was in place. Their failure is an in-house issue that may be dealt with in accordance with in-house principles, policies and consequence management. Such decision is not for this forum to make.
22. The applicant rendered services and is entitled to be paid for these services. The school and by implication, the WCED derived a benefit from these services. The applicant was never informed that she was not to continue working after the expiry of her contract on 30 April 2026 and even in the face of correspondence from the WCED to the circuit manager, she was allowed to continue to work.
23. The applicant is claiming the basic remuneration plus 37% in lieu of benefits for the three-month period of 1 May to 31 July 2026 to the total value of R125372.46 (R41790.82 x 3 months). There is no reason why she should not receive such remuneration.
24. The respondent, the WCED, entered into a pre-arbitration agreement with NAPTOSA in respect of this matter which would have or at least should have narrowed the dispute. At the outset of this process, the parties were afforded a further opportunity to remedy the situation by agreeing to revert to conciliation. Nothing meaningful emanated from that process as the representatives stated that they were not mandated to settle the dispute despite agreeing to revert to conciliation.
25. It is my view, and in consideration of all the evidence and testimony presented to me, that the respondent’s stance to pursue that this matter be arbitrated and that I decide what would be an obvious outcome, is frivolous in the least. Paragraph 54.1 of the ELRC Constitution states “In any arbitration proceedings, the commissioner/panelist may make an order for the payment of costs according to the requirements of law and fairness and when doing so should have regards to:
54.1.1 …. 54.1.3 ….
54.1.4 Whether a party or the person who represented that party in the arbitration proceedings acted in a frivolous and vexatious manner –
54.1.4.1 By proceeding with or defending the dispute in the arbitration proceedings. (underlining my emphasis).
26. I have considered what is set out in paragraph 54 of the ELRC Constitution. The use of the word “may” as set out above gives a commissioner/panelist a clear discretion to issue a cost order against a party that acts in a frivolous manner after due consideration of the listed the effect that a cost order may have on a continued employment relationship; any agreement concluded between the parties to the arbitration concerning the basis on which costs should be awarded; the importance of the issues raised during the arbitration to the parties as well as to the labour community at large; any other relevant factor.
27. I have already determined that the respondent’s actions are frivolous. However, in consideration of the above elements, I am not of the view that a cost order against the respondent would be appropriate under the circumstances. Instead, the respondent is well advised to review its internal mechanisms and the way its managerial representatives fulfil their duties and obligations.
28. Therefore, in consideration of the above, I make the following award:
AWARD:
29. The respondent is ordered to pay the applicant the amount of R125372.46 (R41790.82 x 3) by no later than 30 October 2026. There is no order of costs.
L M Taylor
Commissioner