04 June 2025 2025 – ELRC1099-24/25WC

Commissioner: Lanthis Taylor
Case No.: ELRC1099-24/25WC
Date of Award: 4 June 2025

In the Arbitration between:

NAPTOSA obo Novuyiseko Ngoqo
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr Riedwaan Ahmed & Ms Ngoqo
Telephone:
Telefax:
Email:

First Respondent’s representative: Mr. Frederick Scholtz (WCED Representative)
Telephone:
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Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 10 April 2025 and concluded on 21 May 2025 by way of the virtual platform, Microsoft Teams. The applicant, Ms. Novuyiseko Ngoqo was represented by Mr. Riedwaan Ahmed, an organizer of NAPTOSA. Mr. Frederick Scholtz 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 relates to the conversion of educators employed on a temporary basis to that of full-time employees where Ms. Ngoqo claims that she should have been converted to permanency.

BACKGROUND TO THE ISSUE

It is common cause that the applicant was employed on a fixed term contract basis at Umnqophiso Primary School from 2 May 2017. It is further common cause that 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. This process is governed by a signed collective agreement 02/2024.

SUMMARY OF THE EVIDENCE & ARGUMENTS:

Both parties presented bundles of documents in support of their versions. The applicant testified on her own accord and the union subpoenaed one witness, Ntomboxolo Mqumbisa, the principal of the school. 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. Ahmed stated that the applicant had referred the dispute on her own accord and that the union joined in later to assist her. The matter related to an application and interpretation of collective agreement 2/2024. He stated that the applicant had been employed in a substantive vacant position in the Foundation Phase since 2017. This vacancy arose due to a resignation.
He states that the applicant had applied in 2020, was declined, had applied in 2022, was declined, had applied in 2024 without any outcome being received and her contract ended on 31 December 2024. She seeks conversion and she believes that she is suitably qualified, as she occupied a substantial vacant post and on the basis of 4.3.4 of the collective agreement, she also qualifies as she had resigned previously and had not ended the previous employment relationship with the respondent for the purposes of early retirement or ill health.
The respondent’s representative, Mr. Frederick Scholtz stated that the applicant does not qualify due to her previous employment with the respondent. She was not in a substantive post level one funded post. Records will show that the applicant was in an additional post.

THE APPLICANT’S CASE

The applicant Ms. Novuyiseko Ngoqo, testified on own accord under oath that she joined Umnqophiso Primary School on 2 May 2017. Her qualifications are a Junior Teacher’s Diploma in Education (JTD) and a B Ed in Technology. The (JTD) qualifies her to teach in the foundation phase. She confirmed that she commenced teaching in 1995 and exited the teaching system by way of resignation from ACT Pagadi Primary School at the end of April 2017. She commenced teaching at Umnqopiso Primary School on 2 May 2017 on contract of six months. This was the post that had been vacated by Ms. Singapi. Ms. Ngoqo stated that she was qualified to teach in the foundation phase and was also SACE registered.
Ms. Ngoqo stated that the principal had completed nomination forms for 2023 and 2024. In the nomination form of 2023, the cause of the vacancy is stated as resignation and in 2024, it is stated as not applicable. She referred to the employer’s nomination document which provides for the contracted period of January 2024 to 30 June 2024 and then a further nomination document which provides for the contracted period of 1 July 2024 to 31 December 2024 and pointed out that in both instances, the additional post being the cause of the vacancy was marked as not applicable.
The applicant indicated that she had sent an email to the Circuit Manager, Ms. Meyer-Williams on 18 October 2020 questioning her exclusion from being converted to permanency. She was told that as she had previously resigned, she was not eligible to be converted. She stated that she did not agree with this and requested correspondence but to date has not received anything. She referred to the Collective Agreement 2/2024 stating that she was on the approved educator establishment. In 2023, the establishment comprised of 40 teachers according to a circular which was distributed via a Whatsapp group. She could not provide a copy of 2024 establishment.
When asked to clarify the submission made by her representative in relation to the testimony that she was presenting, Ms. Ngoqo confirmed that she did not apply for conversion in 2020 or 2021 but raised a grievance in 2022 regarding a conversion. She did not receive a response. On 14 November 2024 she submitted an email to Julia Du Preez, A Departmental Labour Representative, regarding her conversion to permanent status. She was of the view that the principal had applied for her conversion because she had been asked to supply relevant documents.
Ms. Ngoqo stated that in line with collective agreement 2/2024, she was not in excess, she was not a first-time applicant, she had been previously permanently employed, and she had resigned, was not subjected to ill health in capacity or voluntary retrenchment and did not receive any severance package. She stated that she was aware of another educator, Nomfusi who had been converted.
At this point the proceedings were adjourned and it was agreed that cross-examination would commence at the start of the next session. This was partly due to the respondent’s representative having a prior engagement in the late afternoon.
The arbitration reconvened on 21 May 2025. The applicant was referred to pages 6 and 7 of the respondent’s bundle. She confirmed that the documents reflect that she was noted as occupying post 326, a post at Umnquophiso Primary School and that this post was noted as an additional post. She confirmed that she had been appointed in a temporary capacity from 1 January 2024 to 30 June 2024 and confirmed that there was an e-recruitment upload for conversion down on 15 November 2024. She maintained that she was appointed in a substantive vacant post despite it being put to her that the persal system showed that she was in an additional post. She based her view on the nomination form which she stated indicated that the cause of the vacancy was listed as “not applicable”.
Ngoqo described what she understood to be the difference between a substantive vacant post and an additional post. She was asked to read the criteria for conversion into the record and indicated that she understood that there were several requirements that needed to be considered during the conversion process. She indicated that the only criteria that she didn’t understand was “funded substantive post”. She further confirmed that she was aware that she was in an additional post. Despite this she confirmed that the principal had applied for the conversion and had made the recommendation on her behalf. She agreed that the department has the final authority to approve the conversion and that the department is to use the collective agreement 2/2024 for the conversion process. She further acknowledged that despite the principal’s recommendation, there was no guarantee that she would be converted as the department had the final authority. During re-examination, she confirmed that she had resigned from the Education Department, had not taken early retirement, had not left due to ill health and had not been voluntarily retrenched.
The applicant called her second witness, Ntomboxolo Mqumbisa, who testified under oath that she is the principal of Umnquophiso Primary School. She confirmed that she knew the applicant who was a former teacher at the school and stated that when she arrived at the school, the applicant was already part of the establishment on contract. She confirmed that when she arrived at the school, her view was that the applicant was in a substantive vacant post as the applicant was not a substitute. The post had been vacated. She stated that she is familiar with the conversion process and that she had applied for conversion for the applicant in 2023 and twice in 2024. She received no response in 2023 and in 2024, she had to upload the documents for a second time.
Mqumbisa testified that she received the response from the department indicating that five teachers could not be converted as the posts that they were occupying were additional posts. In line with the collective agreement, she had to look for new entrants. She again asked for reasons why the teachers could not be converted in January 2025. The circuit manager, communicated the outcome but this was not done in writing. The outcome was that the teachers could not be converted as they were filling other people’s posts. She stated that she had also been informed that if a person had resigned, they would not be converted. There was a circular that related to this, but she did not have this handy.
Mqumbisa was referred to the collective agreement relating to conversion and confirmed that resignation does not form part of the document. She confirmed that the applicant was suited the qualified to teaching the phase and that the applicant was registered with SACE. She stated that she had signed the nomination form, and had indicated on the form “not applicable” for the sub-heading “Temporary appointment” and “Additional Post Reference Number”.
During cross examination, Mqumbisa confirmed that she had submitted the application for conversion on behalf of the applicant. She was asked if she had made sure that the applicant met all the requirements. She replied that she and the applicant did not see eye to eye and as such, she would let the department decide on the conversion process and advise the applicant accordingly. In 2024, she had advised the applicant that she did not qualify but the applicant had gotten personal with her regarding the application and she therefore just submitted the application. When questioned by the commissioner regarding the personal interaction, Mqumbisa stated that she and the applicant did not have a good interpersonal relationship due to the applicant gossiping about her. She elaborated further by stating that when she arrived at the school in 2021, the applicant wanted to be converted but there were issues at the school with the SGB and the staff.
Mqumbisa stated that she was away from the school for five months on medical incapacity leave and when she returned, she again applied for conversion for the applicant even though the applicant did not qualify. This was in the fourth term of 2024. She stated that she had to nominate two people who were in excess and indicated further that the applicant still did not qualify to be converted. The department had informed her to write letters to the various teachers indicating that they contracts would be ending on 31 December 2024.
Mqumbisa stated that she only submitted nominations whether she understood the process or not. She had no hand in the appointments, did her part and the department was required to provide a response. She indicated that the applicant in her mind, was in vacant post as the post had been vacated by somebody who was not coming back. She reiterated that she had nominated the applicant despite seeing a circular which indicated that someone who had resigned, did not qualify for conversion. She left the decision with the WCED and agreed that the WCED was the final authority in the conversion process.
Mqumbisa stated that she received a decision from the circuit manager telephonically regarding the non-conversion of certain teachers. She was advised that the school only has vacant SMT posts which related to persons who were acting in a higher level and if those persons were not promoted, they would return to their original posts. She was told that the applicant was in a SMT post. It was also mentioned that there was a mix up regarding teachers teaching in certain phases. They related to before her time at the school and she could not retrieve any records about who occupied the various posts. She therefore put “not-applicable” on the nomination forms. Mqumbisa stated that she would need to retract her statement that the applicant was in a vacant substantive post as she could not say whose post the applicant occupied. During re-examination, she confirmed that she had retracted her statement as she was not sure and did not have all the facts. The circuit manager had responded that all five teachers were in other people’s posts.

RESPONDENT’S CASE:

The respondent’s representative, Mr. Scholtz indicated that the respondent was not calling any witnesses and closed the respondent’s case.

CLOSING ARGUMENTS:

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. The gist of the applicant’s closing argument is that she qualified for the conversion as she had resigned from the Department previously and which was not a termination due to early retirement, ill health or voluntary retrenchment. It was her further contention that she was in a vacant substantive post up to December 2024 with her contract having been extended several times. The view was expressed that the nomination form signed by the principal did not indicate that the post was an additional post and that it in effect was a post that was vacant due to resignation or a teacher who had left the school. The applicant’s representative contended that the principal, testifying on behalf of the applicant indicated that the applicant did not meet the criteria on the basis of a circular. However, she also testified that the applicant met the requirements in terms of the clause 4.2 of the collective agreement which supersedes a circular.
The respondent’s representative stated in his closing argument that the applicant conceded that the principal could only recommend an application for conversion but that the final authority lies with the WCED decides whether the application meet the requirements of the collective agreement. The fact that the principal recommends the conversion does not mean that the conversion will take place. The applicant’s personal personnel record was shown to the applicant. This related to her occupying an additional post for the 2024. As such she did not qualify for conversion as she was not employed in the substantive post. The applicant has failed to prove that she indeed was in a substantive post. The principal testified that when she joined the school on 1 February 2021, this was the first time that she met the applicant. During 2024 she submitted applications for the conversion of five educators including the applicant, and the feedback she received from the WCED was that none of them qualified as they did not meet the conversion requirements of collective agreement 2 of 2024. He states that the applicant has failed to present evidence to substantiate that she was in a vacant substantive post and also failed to satisfy the prescribed eligibility for conversion to permanency. He seeks that the application be dismissed.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:

At the outset of the arbitration, the applicant’s representative indicated that the applicant would be the only person testifying on own accord. After the applicant had concluded her testimony but was yet to be cross examined, the matter was adjourned as part-heard. During the recess, the applicant’s representative saw fit to subpoena its second witness, Ntomboxolo Mqumbisa. I raised this as a concern with the respondent’s representative at the start of the proceedings on day two as I believed this behaviour to be a bit underhanded more so after the applicant was under pressure to provide certain answers to the commissioner during her evidence-in-chief. Despite my concern as raised, the witness was allowed to fully testify and I have considered her testimony as part of the overall award.
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 April 2017 to December 2024. It is also common cause that the applicant had previously resigned from permanent employment with the Department of Education and had joined another school on a contract basis. At the outset of the arbitration proceedings the applicant’s representative indicated in opening that the applicant had made application for conversion in 2020 which was declined; had applied in 2022 which was declined; had applied in 2024 and had not received any outcome. During her evidence-in-chief, the applicant confirmed that she had not applied in 2020 or 2022 but had raised a grievance in 2022 regarding non-conversion to permanency.
A perusal of her correspondence of 18 October 2020 to Cherie Meyer-Williams, the circuit manager at the time, gives a perspective that the applicant had not applied for conversion nor had any application been made on her behalf. Her email states “It has come to my knowledge that several teachers have been converted at Umnqophiso Primary School by the principal (Mrs Thole) and the SGB chairperson (Mr Zozi)…..”. On 20 October 2020 Meyer-Williams submitted in an email response to the applicant that there were only 4 substantive vacant posts on the staff establishment hence the application for the four teachers occupying these posts.
The dispute before me however relates to the interpretation and application of collective agreement 2/2024. The applicant believes that she should have been converted in line with this collective agreement and it is very evident that an application had been made for her to be converted by the principal. What is important to note at this point is the principal’s submission regarding the reasons for submitting an application for conversion on behalf of the applicant. The principal indicated in her testimony that she and the applicant did not get along and that the applicant pressurised her into making application for a conversion in 2024. She was of the view that the applicant did not qualify but submitted the application nonetheless with a view that the department would make the final decision. She initially indicated that she was of the view that the post the applicant was occupying was a substantive post but later recanted this view because she did not have any supporting evidence to show that the post was indeed a substantive vacant post.
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 a 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 paragraph of 4.2.1 and sub-paragraph 4.2.1.2.
Paragraph 4.2.1. Indicates that “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. (my emphasis). Sub-paragraph 4.2.1.2. Indicates “the temporary educator qualifies for the post in question”. This clause relates to the very funded, substantive and vacant level 1 post referred to in paragraph 4.2.1 and directs that in order to be considered to be converted to permanency, the educator must qualify for the post in question and also meet all the other requirements as stipulated in the collective agreement.
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.”
The applicant bore the burden of proving that she was entitled to be converted from temporary employment status to that of permanency. The applicant, her witness and the respondent’s representative got it wrong when it was indicated that she did not qualify due to her having resigned previously. While there may have been a circular to indicate this as alluded to by Mqumbisa, the Collective Agreement 2/2024 repealed the provisions of any previous collective agreements relating to the conversion of temporary employees to permanent employees (viz. Collective Agreement 4/2018). Collective Agreements also supersede circulars by design.
The preamble of Collective Agreement 2/2024 states: “The purpose of this agreement is to repeal measures regarding the appointment and conversion of temporary educators to posts on the educator establishment contained in Annexure A, paragraphs 1.1.1.1, 1.1.1.2 as well as 4.3.2.2 and 4.3.2.3 of Collective Agreement 4 of 2018 respectively”. Collective Agreement 2/2024 therefore supersedes any other Collective Agreement or circular relating to the conversion of temporary employees to that of permanent employees. Paragraph 4.3.4 gives a clear indication that a temporary employee may not be converted if that educator’s services were terminated for early retirement, ill health or voluntary retrenchment. The applicant does not fall into any of these categories as she had just resigned.
The applicant could not present any evidence that she was in a substantive vacant funded post save to say that she believed that she occupied such a vacant post based on the nomination form submitted by the principal. The principal on the other hand indicated that she had submitted the nomination form due to pressure from the applicant with whom she did not have a good relationship. She elaborated that she was uncertain about the status of the post that the applicant was filling as there had been a mix up of teachers teaching in the phases prior to her coming to the school. She could not access any records to ascertain the status of the post. The respondent’s representative, Mr. Scholtz, on the other hand, presented documentary evidence which was put to the applicant which showed that she was in an additional post on the Persal system in 2024.
Both paragraphs 4.2.1 and 4.3.1 of Collective Agreement 2/2024 outline that “A temporary educator may only be appointed permanently to a funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment.” The applicant has not presented evidence that she was occupying a funded, substantive vacant level 1 post which was on the approved educator establishment. Despite this, the applicant confirmed that the WCED has the final authority in the conversion process. The applicant did not present any evidence that the respondent, WCED, acted capriciously or irrationally when it did not convert her to permanency
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: