Panellist: Themba Manganyi
Case No.: ELRC959-24/25WC
Date of Hearing: 19 March 2025
Date of Award: 02 April 2025

In the Arbitration between

SADTU OBO ZIZELE TYIBILIKA APPLICANT

and

HEAD OF DEPARTMENT OF THE WESTERN CAPE EDUCATION DEPARTMENT RESPONDENT

Applicant ’s representative: Mr Juwa Dimande

Respondent’s representative: Mr Frederick Scholtz

Details of hearing and representation

1. This is an arbitration award in terms of section 138(7) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, emanating from the arbitration proceedings conducted on 19 March 2025 at Metro East Education District in Kuilsriver. These proceedings were conducted under the auspices of the Education Labour Relations Council (“the Council”).
2. Mr Frederick Scholtz (“Mr Scholtz”), the Senior Labour Relations Officer, represented the Respondent, Western Cape Education Department. Mr Juwa Dimande (“Mr Dimande”), a SADTU Official, represented the Applicant, Mr Zizele Tyibilika (“Mr Tyibilika”).
3. The parties submitted bundles of documents into the record. The Applicant’s bundle was marked as Bundle A and the Respondent’s bundle was marked as Bundle R. The proceedings were recorded and the recording thereof was retained by the Council.

Issue to be determined

4. I am required to determine whether the Applicant meet the requirements of being converted into a permanent post as per the provisions of the Collective Agreement 02 of 2024.

Background

5. Mr Tyibilika was employed on 10 May 2021 as an Educator PL1 at Kwamfundo High School on a temporary basis to teach IsiXhosa, Life Science and Social Science. Mr Tyibilika is a qualified teacher and he is registered with SACE. He has been employed in a temporary capacity for a continuous period of at least three months. After his application for conversion was declined, he lodged a grievance and the grievance hearing was held on 10 December 2024. According to him, he was advised to refer a dispute to the Council and to reapply for conversion.
   Survey of evidence and arguments

The Applicant’s case

6. Mr Tyibilika testified under oath and stated that he started working at Kwamfundo in May 2021 after he successfully applied for an advertised post. He testified that the post that he was appointed in was occupied by Ms Kwetane who resigned after twenty eight (28) years at the school. He stated that the advert indicated that the post was vacant. He stated that the nomination form on page of A was completed on 20 April 2021. He stated that he and other educators who were on contracts started to apply for conversion on 13 September 2023 and the Principal told them that the Department declined their applications. He testified that out of the seven (7) Educators who were on contracts, only four (4) were converted.
7. He testified that he reapplied again in October 2024 and they (the three educators that were not converted) lodged a grievance. The grievance hearing was chaired by the Circuit Manager – Mr Mahlotjana and that the ER Manager – Ms Julia du Preez (“Ms du Preez”), a SADTU Official – Mr Jongi Vuyane Ndima (“Mr Ndima”), himself and the other two (2) aggrieved educators attended the hearing. During the grievance hearing, it was established that the Admin Clerk (Mr Thabo) of Kwamfundo did not upload their applications. He stated that the Circuit Manager recommended that they lodge a dispute at the Council and to reapply for conversion. He stated that on 30 January 2025, the Principal informed him that his application was declined because he might be in excess. He felt sad that he was now told that the post was additional.
8. Under cross-examination, he conceded that he did not have the application form with him to prove that he applied for conversion. He stated that the information on the nomination form did not change since 2021. He stated that he was not told that he occupied an additional post as per the PERSAL records. He reiterated that the post that he was appointed in was occupied by an educator who was employed permanently. He stated that he disagreed with the Principal when she told him that he was not going to be converted because he was not part of the school establishment. He conceded that the Principal can only recommend and that the final decision rests with the Head of Department. He did not have any proof that his application for conversion was submitted online.
9. Ms du Preez testified under oath and stated that she attended the Applicant’s grievance hearing on 10 December 2024 and that the Circuit Manager chaired the hearing. She stated that Mr Tyibilika was aggrieved because he met the requirements to be converted. However, the Admin Clerk failed him by not uploading his application. She stated that Mr Tyibilika was appointed in 2021 in a vacant post after the incumbent resigned and that the Principal and the Circuit Manager approved the conversion because Mr Tyibilika met all the requirements. She stated that Mr Tyibilika’s application was successfully uploaded online. However, an email that was sent to the school to request outstanding documents was not opened. Hence, the outstanding documents were not sent. She stated that Mr Tyibilika was not converted due to negligence on the part of the Principal and the Admin Clerk. She testified that the Principal was issued with a final written warning for her negligence and for creating two additional posts at the school.
10. Under cross-examination, she stated that the Principal and the Circuit Manager said the Applicant was in a vacant, funded and substantive post. She conceded that as per the PERSAL report on page 5 of R the Applicant’s post was additional. She confirmed that the Principal and the Circuit Manager can only recommend and that the approval rested with the Head of Department. She did not establish why the Applicant’s application was declined. She conceded that the Head of Department can only approve the conversion if the post is funded, substantive and vacant.
11. Mr Ndima testified under oath and stated that he was the Principal at Noxolo Primary School and the Branch Secretary of SADTU. He stated that he attended the Applicant’s grievance hearing at the Circuit Office. He stated that during the grievance hearing it was said that there were some documents for the Applicant’s conversion application that were required by the e-Recruitment, but the Principal did not submit those documents. During the hearing, the Circuit Manager indicated that he would make a follow up with Head Office regarding the conversion applications of the aggrieved educators because the Educators were not at fault that some of their documents were not submitted. The Circuit Manager advised them that they should refer a dispute to the Council. He testified that during the hearing it was stated that the Applicant occupied a funded, substantive and vacant post.
12. Under cross-examination, he stated that they were not provided with any document from the grievance hearing. He stated that he testified that the Applicant occupied a funded, substantive and vacant post. He said the Circuit Manager stated that the Principal has disadvantaged the educators whilst they qualified to be converted. He conceded that page 5 of R indicated that the Applicant occupied an additional post. However, he took issue with the date (13 March 2025) that is indicated on the document. He agreed that as the Principal, he had the powers to recommend and that the Head of Department has the final say in the approval for the conversion.

The Respondent’s case

13. The Respondent did not lead any evidence.

Closing Arguments

14. Mr Dimande argued that the Applicant was in a funded, substantive and vacant post since 2021 and that the status of that post never changed. He submitted that the Circuit Manager admitted that the Applicant qualified to be converted. However, the Principal and the Admin Clerk failed to submit their required documents. Hence, there was consequence management for the Principal and the Admin Clerk. He argued that page 5 of R did not state how the Applicant ended up in an additional post. He further argued that the Applicant was supposed to have been made permanent after three months of his appointment.
15. Mr Scholtz submitted that after the publishing of Collective Agreement 2 of 2024, the Department issued a circular to encourage educators to apply for conversion. He argued that the Applicant did not qualify for conversion as he occupied an additional post. He further argued that there was no evidence that was presented to prove that the Applicant was in a funded, substantive and vacant post. On the other hand, the Respondent has submitted evidence to substantiate that the Applicant was in an additional post. He added that the principal only recommends and the Head of Department has the authority to appoint.

Analysis of evidence and arguments

16. It is a common law principle that he who alleges, must prove. In this case, the Applicant alleged that he met all the requirements to be converted into a permanent position in line with the provisions of the Collective Agreement 2 of 2024. Therefore, the burden of proof rests with the Applicant in this matter.
17. Annexure A of the Collective Agreement in clause 4.2 provides that:

4.2.1. A temporary educator may only be appointed permanently to funded, substantive and vacant post level 1 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 the conversion;

4.2.1.2. the 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 Services Act, 1994 (Proclamation No 103 of 1994), as amended.

18. It is not in dispute that Mr Tyibilika has been employed in a temporary capacity for a continuous period in excess of three (3) months. Mr Tyibilika is a qualified educator and he is registered with SACE. It is further not in dispute that Mr Tyibilika was employed since May 2021 on a temporary capacity and that his contract of employment has been renewed until it was terminated on 31 December 2024.
19. The central issue in dispute was whether Mr Tyibilika occupied a funded, substantive and vacant level 1 post which was on an approved educator establishment. The Applicant’s unchallenged version was that he lodged a grievance after he learned that he was not converted and the grievance hearing was heard on 10 December 2024. This version was corroborated by de Ms Preez and Mr Ndima. As per the unsubstantiated evidence of Mr Tyibilika, Ms du Preez and Mr Ndima, the Circuit Manager advised the educators that were aggrieved to refer a dispute to the Council, because it was not the educators’ fault that the Principal failed to submit the required documents. All these witnesses conceded that there was nothing in writing to corroborate this version and the Circuit Manager was not called as witness to substantiate this assertion. There was no evidence that was presented before me that Mr Tyibilika was employed in a funded, substantive and vacant post which was on an approved educator establishment.
20. The Respondent in its rebuttal submitted PERSAL printouts that indicated that Mr Tyibilika was employed in an additional post. The Applicant took an issue with only the date (13 March 2025) that appeared on the PERSAL printout and argued that the information indicated the status of the post as the date of 13 March 2025 and not when the Applicant was employed. I do not align myself with this view because page 3 of R indicates the dates as far back as 2021 and that the said date (13 March 2025) depicts the date when the documents were printed and not the activities on the PERSAL system.
21. As already indicated herein above, the Applicant bears the burden of prove in this dispute. I was not presented with any tangible evidence to prove that the post that the Applicant occupied was within the approved educator establishment except for the Nomination for Appointment as Teacher form on page 2 of A that does not indicate the post reference number and the date the post became vacant. I am alive to the fact that this form must be completed by the Principal. However, the Principal has the authority to recommend and it is still the prerogative of the Head of Department to appoint. In the absence of any evidence to substantiate that the Applicant occupied a funded, substantive and vacant post within the approved educator establishment, I can only conclude that the Applicant does not qualify to be converted.

Award

22. Mr Zizele Tyibilika was appointed in an additional post. Therefore, he cannot be converted into a permanent post.
23. The Council must close this case file accordingly.

Arbitrator: Themba Manganyi