04 February 2025 – ELRC674-24/25WC

Commissioner: Lanthis Taylor
Case No.: ELRC674-24/25WC
Date of Award: 04 February 2025

In the Arbitration between:

Nomfundo Halu
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr Oliver Marshall (Attorney) & Ms Halu
Telephone:
Telefax:
Email:

First Respondent’s representative: Ms. Nomxolisi Qonongo (WCED Representative)
Telephone:
Telefax:
Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 17 January 2025 by way of the virtual platform, Microsoft Teams. The applicant, Ms. Nonfundo Halu was represented by Mr. Oliver Marshall, an attorney from Kern, Armstrong and Associates. Ms. Nomxolisi Qonongo represented the respondent, the Department of Education – Western Cape. The proceedings were conducted in English and were digitally recorded.

THE ISSUE IN DISPUTE

The issue before me is the interpretation and application of a collective agreement relating to the conversion of educators employed on a temporary basis to that of full-time employees.

BACKGROUND TO THE ISSUE

The parties indicated that they had attempted to engage in a pre-arb process but there were not minutes drafted for this. The respondent’s representative requested that the matter be stood down in order for her to revisit her principals regarding a mandate to resolve the matter. This request was granted but unfortunately no mandate was forthcoming.
It is common cause that the applicant was employed on a fixed term contract basis at John Pama Primary School from July 2020. The Department of Education embarked on a conversion process where fixed term contract employees would be converted to permanent employee status if the requirements are met for the person to be converted.
The applicant applied for a conversion during 2024 when the post she was occupying became a substantive vacant PL1 post. Initially she was employed in a promotional post. The application was declined on the basis of her not being suitably qualified for the foundation phase where she was teaching. Ms. Halu earning R343227.00 plus benefits as a contact teacher. Her contract came to an end on 31 December 2024 and she seeks an interpretation of the collective agreement along with conversion to permanency.

SUMMARY OF THE EVIDENCE & ARGUMENTS:

Both parties presented bundles of documents in support of their versions. The WCED called one witnesses, while the applicant testified on her own accord. I am required by the LRA to provide brief reasons to substantiate my findings and determinations 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.
OPENING STATEMENTS
The applicant bore the burden of proof and as such commenced with presenting her version. Mr. Marshall stated that the applicant had been employed at the school on a fixed term basis since 2020 and at no point was there an indication that her qualifications were insufficient. Her contract was renewed annually and she was paid a full salary. When she applied for conversion to permanency, she was told that she lacked the necessary credits in her qualification. The concession for partially qualified educators was not communicated with her and the Education Department failed to guide or include the applicant. She is a sought-after educator who was willing to complete any outstanding modules. He stated that the respondent refused to confirm which modules are needed and did not allow her to close the gap.
The respondent’s representative, Ms. Qonongo stated that the matter is straight forward. She agreed that the applicant was appointed on a fixed term contract over the period of four years but was not in a substantive post. Once the promotional posts had been filled and her post became a substantive post, she applied for conversion but was found to not be suitably qualified as set out in the relevant circular 0026/2019. The applicant only had a BA degree and Post Graduate Certificate in Education (PGCE) which did not meet the minimum requirements for conversion.

THE APPLICANT’S CASE

The applicant testified on own accord under oath that she joined John Pama primary school in July 2020. Her qualifications are a BA degree in communication science and the postgrad certificate in education for foundation phase (PGCE). She stated that she was teaching grade 3 learners in the foundation phase from 2020 until December 2024. She’s currently unemployed as her contract ended on 31 December 2024. She referred a dispute to the ELRC because she believed that it was unfair of the Western Cape Department of Education to decline her conversion from part-time teacher to that of a permanent full-time teacher. She indicated that she had been teaching in the same post from 2020 to 2024 and that a short fall in the modules had never been communicated to her until she applied for conversion in October 2024.
Ms. Halu testified that there were no limitations to her appointment as a contract teacher and at each instance of renewal of her contract, she presented certified copies of her qualifications to the principal. These were the same qualifications that she used when she applied for conversion. She stated that the principal approached her in September 2024 for documentation to commence the conversion process as the post she was occupying had become a substantive vacant post which was eligible for permanent appointment. She stated that she had to do a criminal check which was also submitted to the department. The department declined her conversion and relayed the same via the principal that she was short of credits. She stated that she only became aware of the condonation process during the conciliation of her dispute under the ELRC.
Halu stated that she was a very competent teacher and gave an overview of her performance and that of her grade 3 learners. She indicated that the results reflect her performance as teacher who provides quality education. She stated that she accepted her status as a qualified teacher because she was not being paid a full salary in the same fashion as any other teacher. The principal is happy with her performance, which was proven by the assessment results and competency. She is registered with SACE to practice as an educator and does not understand how she could not qualify due to outstanding modules. She stated that the guidelines for partially qualified persons was not discussed with her and she was not assisted with her NDP (non-degree purposes) application to UNISA. She was further not informed of the dead line in Circular 0028/2023. Halu stated that despite the circulars stating that they are to be brought to the attention of all staff, none were brought to her attention.
During cross-examination, Halu confirmed her tenure with the school. She first applied for conversion in September 2024 and had no point prior to that date made an application for conversion or permanency. She stated that she applied when the principal requested documents from her for submission. On 15 October 2024 she received an email from the principal indicating that her conversion application was declined due to a short fall in her credits.
Halu confirmed that this dispute related to an interpretation and application of a collective agreement. She was referred to Collective Agreement 2 of 2024 – The Appointment and Conversion of Temporary Educators to Posts on the Educator Establishment and confirmed that in order to be converted, the educator must qualify for the post in question. In relation to Circular 0026/2019, Halu confirmed that this circular relates to the evaluation of qualifications. She confirmed that she was seeking conversion in the foundation phase at post level1. She confirmed the transcript of her PGCE qualification and also confirmed that the circular confirms the requirements to teach in the Foundation Phase. The requirement is listed as “A study of a full academic degree course stretching over two semesters with a minimum of 30 credits completed at NQF Level 5 is considered appropriate to teach Home Language, First Additional Language, Mathematics and Life Skills in the Foundation Phase for the teaching of reading, writing and numeracy and to develop key initial concepts and skills that lay the foundation for learning in future phases.
Halu confirmed that the only teaching subject in her degree is English with a rating of 12 credits and she further confirmed that the circular 0026/2019 refers to a minimum of 30 credits. She confirmed that the PGCE covers the teaching subjects and that the credits in each module amounted to 12 credits. She also confirmed that the criterium is to qualify for Post Level 1 in the Foundation phase and also confirmed that due to her only having 12 credits for the teaching subjects, she was not suitably qualified because of not having the minimum credits.
Halu confirmed that she only applied for conversion in September 2024. She did not apply previously as the principal had told her that HOD posts had to be filled first. She confirmed that prior to September 2024, she was not in a substantive vacant post and when her post became a vacant substantive level 1 post, the principal asked her to apply. She believed that the Department was unfair to her as the qualifications submitted were the same qualifications, she presented in 2020. When asked how the Department was unfair in the conversion process, she responded that she was kept in the post for 4 years.

RESPONDENT’S CASE:

The respondent’s witness, Elzette Koen testified under oath that she works as an HR practitioner in Recruitment, Selection and conversion of educators. She explained the conversion process where the principal would create a profile for the educator and upload the documents for Recruitment and Selection to view and evaluate the qualifications. She stated that if the conversion is declined, the school is notified on e-recruiting along with the Circuit Manager and Admin Official. If the conversion is approved, the incumbent receives and appointment letter.
Koen stated that the applicant’s conversion was declined after her qualifications were evaluated. The applicant has a BA degree in communication science plus a PGCE foundation phase and early childhood development. The modules completed by the applicant in the BA degree along with the modules in the PGCE were found to not be suitable for teaching in the Foundation phase. The applicant was professionally qualified but was not suitably qualified in line with Circular 0026/2019. The educator has an education qualification but is not suitable for the Phase.
She stated that the purpose of circular 0026/2019 is to provide clarity on the minimum requirements for admission to teach in the Foundation Phase and Intermediate Phase. The circular also provides clarity on the Postgraduate Certificates in Education (PGCE) as well as the National Professional Diploma in Education (NPDE).
Koen stated that the applicant completed her PGCE in 2019. She explained that Paragraph 10.2.2 of circular 0026/2019 requires that a minimum of 30 credits at NQF Level 5 is considered appropriate to teach Home Language, First Additional Language, Mathematics and Life Skills in the Foundation Phase. She stated that they looked at the applicant’s PGCE qualification in conjunction with the BA qualification and found that the applicant had not attained sufficient credits in the field of mathematics and life skills. She gave the overview of the applicant’s English credits indicating that the applicant had completed English studies and practising workplace English in her BA degree equalling 24 credits and had attained a further 12 credits in her PGCE which made her proficient in the language component as she had more than 30 credits. In the instance of mathematics and life skills, the applicant came up short of the minimum of 30 credits required. The applicant was therefore found not to be suitably qualified and as such the conversion was declined.
During cross examination, Koen stated that the assessment and in this instance, the declining of the conversion was done as a team. She stated that their section does not communicate directly with the applicants. Information is sent to the school and the district. The principal can request elaboration on the reasons for the declined conversion. To her knowledge, the school applied a second time but provided the same information that had been evaluated and the school was given a brief explanation of modules to be completed. In response to a statement that there was no further attempt to help the applicant complete her modules, Koen stated that it was not her responsibility to help the educator complete relevant modules.
She confirmed that paragraph 10.2.2 of circular 0026/2019 does not specify the word “each” but quantified the requirements in the ensuing paragraphs where 10.2.3 related to mathematics, 10.2.4 related to life skills and 10.2.5 related to languages.
Both parties submitted closing arguments in writing on the agreed date which I have considered and which will form a part of the overall award. The closing arguments presented a synopsis of the oral testimony presented.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:

The issue before me is relatively simple in effect. The applicant’s contention is that she is suitably qualified to be converted from part-time to full-time employment and as such seeks to be converted as the primary remedy. The respondent has a directly opposing view relating to the applicant being suitably qualified.
It is common cause that the applicant was employed on fixed term contracts over the period July 2020 to December 2024. It is also common cause, as conceded by the applicant, that the applicant was not associated with a substantive vacant post level one educator post until she was advised of this in September 2024 which is the same period in which she applied for conversion. It is further common cause that her application was assessed and the conversion was declined on the basis of the contention that she was not suitably qualified to teach in the foundation phase.
It needs mentioning that the applicant’s representative submitted that the applicant was prejudiced by not having had access to the condonation process for the conversion of educators as outlined in circular 0028/2023. The respondent submitted, and rightly so, that this circular was not applicable to the applicant as she was not eligible for conversion at the time due to her not occupying a vacant substantive level 1 educator post. The applicant herself confirmed this.
The circulars in question relating to the conversion and the associated requirements are circular 0026/2019 and collective agreement 2/2024. Collective agreement 2/2024 stipulates the requirement for conversion. Paragraph 4.2 indicates the following:

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

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

There is no doubt that the applicant meets the requirements of all the sub-paragraphs except the disputed sub-paragraph of 4.2.1.2. The circular 0026/2019 relates to the evaluation of qualifications for Foundation Phase and Intermediate Phase Postgraduate Certificates in Education as well as the National Professional Diploma in Education. Paragraph 10 relates specifically to Postgraduate Certificate in Education (PGCE): Foundation Phase.

Paragraph 10.1 states: In order to teach in the Foundation Phase (Grades R to 3), a recognised professional teaching qualification (480 credit NQF Level 7 B Ed degree or 120 credit NQF Level 7 Advanced Diploma in Foundation Phase Teaching or Foundation Phase PGCE) is required. The applicant has a PGCE as part of her qualifications. (my emphasis)

However, Paragraph 10.2 states: “For students to meet the admission requirements for Foundation Phase PGCE teaching programmes, and to be employed to teach in this phase, the following requirements must be met:” (my emphasis)

10.2.1 The requirement stipulated in paragraph 12.11 of the Revised Policy on the Minimum Requirements for Teacher Education Qualifications, published in Government Gazette No. 38487 of 19 February 2015, refers. Paragraph 12.11 as listed above states that the title of Postgraduate Certificate in Education may be used to denote a qualification which conforms to all the specifications of an Advanced Diploma. The PGCE accredits a professional teaching programme that endorses an unrelated undergraduate degree or an approved diploma so that the degree or diploma holder is offered an entry-level opportunity to develop focussed knowledge and skills as a classroom teacher.

10.2.2 A study of a full academic degree course stretching over two semesters with a minimum of 30 credits completed at NQF Level 5 is considered appropriate to teach Home Language, First Additional Language, Mathematics and Life Skills in the Foundation Phase for the teaching of reading, writing and numeracy and to develop key initial concepts and skills that lay the foundation for learning in future phases.(My emphasis)

10.2.3 For teaching Mathematics: Mathematics, Applied Mathematics, Statistics or Numerical Analysis.

10.2.4 For teaching Life Skills: Psychology, Sociology, Philosophy, Political Science and Human Movement Science or Labour Studies.

10.2.5 For teaching Languages: All Foundation Phase students must specialise in Home Language teaching in one of the official languages, together with English First Additional Language teaching.

The respondent’s witness, Koen testified that in order for the applicant to meet the minimum requirements to teach in the foundation phase, she required credits to a minimum value of 30 credits for literacy, 30 credits for numeracy and 30 credits for life skills as set out in paragraph 10.2.2. She further testified that 10.2.2 is quantified by what is set out in 10.2.3 to 10.2.5. The latter paragraphs set out which units of study could make up the required 30 credits in each of the categories needed to teach in the foundation phase. The applicant’s representative stated that paragraph 10.2.2 does not specifically indicate that 30 credits are required in each of the categories as mentioned.
In Dioma and Another v Mthukwane NO and Others (JR784/2016) [2020] ZALCJHB 138 (11 August 2020), the court referred to Western Cape Department of Health v Van Wyk & others which outlined the following principles:
“ i. 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;
ii. 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.
iii. 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.
iv. 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.”
I have looked at the wording of paragraph 10.2.2 of Collective Agreement 2/2024 and while the word “each” does not appear in the paragraph, it is clearly the intention of the drafters and the parties to the agreement that a degree course over two semesters (1 year) with a minimum of 30 credits is appropriate or to teach Home Language, First Additional Language (literacy component), Mathematics (numeracy component) and Life Skills. The Collective agreement quantifies the type of course components that could provide the necessary credits in 10.2.3 to 10.2.5. By the same token, I have also looked at the applicant’s PGCE qualification which is headed as Post Graduate Certificate in Education (Foundation Phase and early childhood development) and I have researched with various training institutions regarding the PGCE qualification. The golden thread is that at least 30 credits is required for each component of literacy, numeracy and life skills.
The applicant’s PGCE has the required minimum of 120 credits. However, the units of study do not line up with the minimum requirements of 30 credits for each component as listed above which is the minimum requirement to teach in the Foundation Phase. It would appear that the applicant’s elected units of study were more geared to the early childhood development component of her PGCE.
The applicant’s contentions that she has been teaching for a period of four years with the same qualifications that she used when she applied for conversion and that she was an exceptional performer in the teaching role are noted. While I accept that this may be the case, it is quite evident that the evaluation of her qualifications only came into play when she applied to be converted from temporary employment to full-time employment. The evaluation of her qualifications was done in line with the collective agreement 2/2024 and circular 0026/2019 and that evaluation found her lacking in academic credits.
Therefore, in consideration of all of the above and in consideration of the opposing interpretations of the collective agreement as presented to me, I make the following award:

AWARD: