04 September 2025 -ELRC1435-24/25WC

Arbitration Award

Commissioner: Gerald Jacobs
Case Number: ELRC1435-24/25WC
Date of Award: 02 September 2025

In the matter between:

NATU obo Astrid Townsend
(Applicant/Employee)

and

Education Department of Western Cape
(Respondent/Employer)

Details of Hearing and Representation

This is the award in the arbitration between the applicant, the National Teachers Union (NATU), on behalf of Ms Astrid Townsend and the Education Department of the Western Cape (WCED), the respondent.
The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 24 (1) of the Labour Relations Act, 66 of 1995, as amended (“the Act”). The award is issued in terms of section 138 (7) of the Act.
This arbitration was conducted remotely via Microsoft Teams on 12 May 2025, 20 June 2025, and 11 August 2025. At the outset, the applicant was represented by a trade union official, Mr. Sandile Mtabela. However, during the first sitting, Mr. Mtabela abruptly abandoned the proceedings without explanation. Thereafter, another union official, Mr. Njabulo Sibusiso Mtolo, stated that he had been asked to take over the applicant’s representation. The respondent was represented throughout by its Labour Relations Officer, Ms. Leonie van der Zandt.
Both parties agreed to submit written closing arguments instead of presenting them orally. They were directed to file these submissions by 18 August 2025, and I received both parties’ arguments on that date. In terms of section 138(7) of the Labour Relations Act, the 14 days for issuing the arbitration award are therefore calculated from 18 August 2025.
The proceedings were digitally recorded.

The issue/s to be decided

The dispute concerns the interpretation and application of ELRC Collective Agreement 2 of 2024. The bone of contention was whether the respondent had applied the provisions of the collective agreement correctly when considering the applicant’s conversion application.
As relief, the applicant seeks to be converted from her current temporary status to a permanent Post Level 1 position. The collective agreement was the source of the entitlement.

Background to the dispute

The relevant facts are as follows. The applicant, Ms. Astrid Candice Townsend, holds a Bachelor of Education in Languages and Life Orientation, completed in 2023 at the University of the Western Cape. She is registered with the South African Council for Educators (SACE) under registration number 12786344 as of 14 September 2023.
She commenced employment with the Western Cape Education Department (WCED) on 15 May 2023 as a temporary teacher at Perseverance Secondary School, where she was employed until 22 June 2023. On 1 January 2024, she was appointed on contract as a Post Level 1 educator at Perseverance Junior High School, teaching Grade 8 English Home Language and First Additional Language, and Grade 9 English First Additional Language at Perseverance Secondary School. This contract ran until 31 December 2024. On 11 February 2025, she resumed employment with the WCED on a substitute contract at Perseverance Secondary School, where she remains employed.
On 5 June 2024, the applicant submitted an application for conversion to permanent employment. The Department received the application on 7 June 2024. No response was provided to the applicant until she received a letter in late November 2024 confirming the termination of her contract on 31 December 2024. Following this, she contacted her trade union, the SAOU, on 29 November 2024 to inquire about the status of her application. She was informed that the eRecruitment system for conversion had closed on 15 November 2024 and that her application had been unsuccessful because it was recorded as “incomplete sets; no resubmission received prior to 15 November 2024.” An internal Departmental email dated 2 December 2024 confirmed this outcome.
The Department’s reasons for rejecting the application were that the applicant’s submission contained incomplete and outdated documents. These included an outdated DOTS form, a conversion certificate unsigned by the Circuit Manager, an outdated bank form, and an incomplete academic transcript. The transcript submitted reflected “marks not released” for certain modules, preventing the Department from confirming her suitability to teach English in the senior phase. In addition, the Department could also not verify whether she was employed in a substantive vacant funded post, despite her principal confirming otherwise in the conversion certificate.
The applicant, dissatisfied with the outcome of her application for conversion from a temporary educator to a permanent Post Level 1 position within the WCED, referred a dispute to the ELRC. The dispute was referred in terms of the “Interpretation and Application of Collective Agreement,” specifically relating to ELRC Collective Agreement 2 of 2024.
The dispute remained unresolved following a conciliation meeting held on 10 April 2025. A certificate of non-resolution was issued, and the applicant thereafter requested that the matter be resolved through arbitration.

Survey of evidence and argument
Documentary evidence:

The applicant submitted a bundle of documents comprising 20 pages. The respondent submitted a bundle consisting of annexures marked A to K, namely: Annexure A – ELRC Form E1 (Referral of a Dispute to the ELRC); Annexure B – Certificate of Outcome of Dispute Referred to Conciliation; Annexure C – Persal Service Record; Annexure D – Email regarding the status of the conversion; Annexure E – eRecruit Conversion Outcome Particulars; Annexure F – Academic Transcripts; Annexure G – Conversion Certificate; Annexure H – Z56 Bank Form and Bank Confirmation Letter; Annexure I – Candidate Indemnity/Vetting (DOTS) Form; Annexure J – Circular 0034 of 2023; and Annexure K – ELRC Collective Agreement 2 of 2024.

The applicant’s case

The applicant testified that the transcript filed by her was incomplete, containing only three of eight pages. She said she had provided the full and updated transcript to the school administrator, before both 7 June and 15 November 2024, and any omission was therefore due to the Department. She acknowledged that the e-Recruitment system flagged discrepancies in her documents, but maintained that she was never informed of the need to re-upload them and that the emails relied on by the Department were never sent to her.
She further testified that the conversion certificate was signed by the principal and the SGB chairperson and confirmed the existence of a vacant post with no excess staff, although it lacked the Circuit Manager’s signature. On the Z56 bank form, she said she had completed it when she began her employment, and later also completed the 2024 version and handed it to the school. She also confirmed that she had completed the DOTS vetting form after her interview and was advised that a further form for the conversion process was unnecessary, as the earlier one remained valid.
She maintained that she complied with all the requirements of the Collective Agreement. Once she had submitted her qualifications, SACE registration and transcript, she regarded her responsibility as discharged. She contended that any defects in her application were due to administrative failures and poor communication by the Department, and she argued that she met both the substantive and procedural requirements for conversion.

The respondent’s case
Ms Elzette Koen

Ms Koen was, at the time of the applicant’s conversion application, serving as a Human Resource Practitioner, Institution-Based Educators (IBE) in the Directorate of Recruitment and Selection at the WCED. She has held this position since 1 January 2016 and was promoted to Assistant Director on 1 August 2025. As a Human Resource Practitioner, her responsibilities included managing and processing applications for the conversion of temporary educators to permanent posts. Her testimony primarily focused on outlining the WCED conversion process for educators and explaining why the application for permanent appointment of the applicant was deemed incomplete and could not be processed.
Ms Koen testified that once an application is received, her office first verifies whether the educator meets the eligibility requirements, which include continuous employment for at least three months, being a registered educator, and being a South African citizen or permanent resident. She confirmed that while the applicant met some of these criteria, the crucial requirement of being qualified for the specific post could not be confirmed due to incomplete academic transcripts. As a result, her office did not proceed to check for a vacant substantive post, and the application could not be processed further. Only once the application is complete can the office proceed to reserve a post and determine whether a vacant substantive position exists at the school. If the application is incomplete, it is returned via the e-Recruitment system to the district office and the school for attention.
Ms Koen stressed that the process requires verification of documents before checking post availability, and that if an application remains incomplete, the educator cannot proceed to the next stage, even if other eligibility criteria are met. The Collective Agreement does not mandate that a second opportunity must be given to submit missing or incomplete documents.
She emphasised that the responsibility for submitting all required documents rests with the educator, the principal, the school governing body, and the circuit manager, with the principal administering the e-Recruitment system and uploading documents received from the applicant.
She further clarified that the e-recruitment system does not send notifications directly to applicants. It only alerts the principal, school, and circuit manager. When incomplete applications are identified, the office communicates the specific deficiencies to the relevant school and district officials, who are expected to ensure the educator is informed.

Closing arguments

In this case, the applicant framed the dispute before the Bargaining Council as one concerning the application of the Collective Agreement, but later included an alternative unfairness claim “through the back door,” as described by her own representative. This late shift was contentious, and I’m now going to deal with it.
The applicant’s representative, Mr Mtolo, submitted in his closing arguments that the non-conversion of the applicant was unfair. It was submitted that the digitisation of the conversion process shifted the responsibility for document submission from the principal, who carries that duty under the Collective Agreement, to the educator. The online requirement that educators upload their own documents was described as a “reverse onus clause”. According to him, the responsibility in terms of the Collective Agreement rests squarely on the principal, and the failure of the principal and Circuit Manager to perform this function should not have prejudiced the applicant.
It was further submitted that the e-Recruit system itself was inherently flawed. Mr Mtolo contended that even if the applicant had committed no errors, the system would still not have processed her conversion successfully. This, it was submitted, reflects a structural unfairness in the digitised process which placed educators at risk of non-conversion irrespective of their compliance. He stated further that the lack of timely and transparent communication was itself unfair and compounded the prejudice caused by the non-conversion.
The respondent representative, Ms van der Zandt, opposed the introduction of these arguments on fairness. It was pointed out that this line of argument only emerged during re-examination, after contradictions had been highlighted in the applicant’s testimony under cross-examination. She submitted that the fairness issue had not formed part of the applicant’s case until that stage, and that raising it so late amounted to introducing a new version that the respondent had no opportunity to test.
Ms van der Zandt further submitted that the parties had narrowed the issues in advance to whether the applicant met the requirements of the Collective Agreement for conversion. By raising fairness in re-examination, the applicant deviated from the agreed scope of the arbitration. She maintained that the real dispute before the arbitrator remained whether it had breached the Collective Agreement 2 of 2024 by not converting the applicant to permanency.
In PSA obo Strauss and Others v Minister of Public Works NO and Others [2013] 7 BLLR (LC), the Labour Court considered a similar situation. The Court held that although Bargaining Councils have jurisdiction over disputes about the interpretation and application of a collective agreement in terms of section 24 of the Labour Relations Act, they do not have jurisdiction to arbitrate over the fairness of such agreements or their implementation. The applicants in that case sought to challenge the fairness of the outcome of a translation under an OSD collective agreement; however, the Court confirmed that the Bargaining Council had no jurisdiction to inquire into whether it was fair. The arbitrator lacked jurisdiction to address any unintended consequences of the agreement. A similar conclusion was reached in Johannesburg City Parks v Mphahlani NO & others [2010] 6 BLLR 585 (LAC), followed a judgment that was handed down on the same day in Minister of Safety and Security v Safety and Security Sectoral Bargaining Council & others [2010] 6 BLLR 594 (LAC) where it was held that a Bargaining Council’s jurisdiction concerning the fairness of the application of a collective agreement is limited. While a Bargaining Council generally has jurisdiction to decide disputes about the interpretation and application of a collective agreement, it typically does not have jurisdiction to decide on the fairness of the collective agreement itself or the fairness of its consequences if it was correctly applied.
The Labour Appeal Court further elaborated that an issue in dispute is a subsidiary question that arises in the process of resolving the real dispute. It is not the dispute itself but something that must be considered along the way. Zondo JP illustrated this distinction and explained that if an employee is dismissed for operational requirements and challenges the dismissal as unfair because the employer did not follow a procedure in a collective agreement, then the Court must interpret the agreement to decide the matter. The issue in dispute would be whether the clause applied and was complied with, but the real dispute remains the fairness of the dismissal.
Therefore, if the main dispute concerns the fairness of an employer’s action (such as a dismissal, demotion, promotion, or refusal to transfer), then any question about the interpretation or application of a collective agreement is only an issue in dispute, not the dispute itself. In such cases, the bargaining council does not have jurisdiction merely because the agreement must be interpreted along the way. By contrast, if the main dispute is directly about the interpretation or application of a collective agreement, then section 24 of the LRA applies, and the bargaining council would ordinarily have jurisdiction.
This is particularly relevant in the applicant’s case, given the respondent’s argument that the issue of fairness was improperly raised and constituted a different cause of action. However, the applicant representative is not primarily arguing that the collective agreement itself is unfair, but rather that the respondent’s method of implementing the collective agreement (i.e., the digitised process that allegedly shifted responsibilities and created a “reverse onus”) constituted a breach or incorrect application of the agreement’s terms, and this incorrect application is inherently unfair. Therefore, the fairness is a direct consequence of the alleged failure to follow the agreed-upon or intended conversion procedure as laid out in the collective agreement. Therefore, the main dispute remains whether the respondent adhered to the provisions of the collective agreement. However, the Bargaining Council has no jurisdiction to determine the inherent unfairness itself, which was a subsidiary issue that arose in the process.
As to the dispute over the application, Mr Mtolo submitted that the applicant satisfied all the requirements for conversion. He pointed out that she had proof of continuous service of at least three months in the same post, held the appropriate qualifications for the subject or phase, was registered with the South African Council for Educators (SACE), was a South African citizen or permanent resident, and had confirmation that she was a fit and proper person. Clause 4.4.2 of the Collective Agreement places the duty on the Principal to gather and submit all relevant information to the district office and to show that the temporary educator qualifies for conversion.
Ms van der Zandt submitted that the applicant’s conversion application failed because she did not comply with the requirements of the collective agreement and submitted incomplete documentation. She noted that the applicant conceded her transcript was incomplete and failed to provide either a full version or supporting correspondence. Evidence was also led that all applicants were responsible for ensuring their documents were complete before submission, and that the Collective Agreement does not allow for resubmission. Ms van der Zandt further submitted that the HOD has discretion either to convert or to follow the normal recruitment process, and that no Post Level 1 vacancies existed at the applicant’s school. On this basis, it was argued that the Department correctly applied the provisions of the collective agreement and that the applicant’s non-conversion was the result of her own failure to meet the requirements.

Analysis of evidence and arguments

The parties to the ELRC entered into a Collective Agreement in 2024 (the Collective Agreement 2 of 2024). Clause 4.4 of Collective Agreement No. 2 of 2024 sets out the procedure for converting temporary educators to permanent employment. The process begins with the school principal, who must submit a written request to the Department’s District Office. This submission must include the profile of the funded, substantive, and vacant post currently held by the temporary educator, along with a completed conversion certificate confirming the post’s existence and that no excess staff are present. The principal and the School Governing Body (SGB) chairperson must also confirm in writing that the educator meets all eligibility requirements under Clause 4.2 and that no other educator has a claim to the post under Clause 4.3. The District Office then verifies the documentation and confirms whether all eligibility and post requirements are satisfied, before forwarding the final recommendation to the Head of Department (HOD) or delegate for approval. In this process, the collective agreement protects educators, in line with Section 6B of the Employment Equity Act, from being treated less favourably in the conversion process without an objectively justifiable reason.
The eligibility requirements, outlined in Clause 4.2, are fundamental to the conversion process. An educator must have at least three months of continuous service, be registered with SACE, be a South African citizen or permanent resident, be a fit and proper person, and hold the necessary qualifications for the post. Clause 4.3 establishes that the conversion applies only to funded, substantive vacant posts and ensures that conversion does not disrupt redeployment processes or lead to arbitrary appointments. Clause 4.4 operationalises these requirements through a structured procedure (sub-clauses 4.4.1–4.4.5), creating a chain of checks and balances, where the principal initiates, the District verifies, and the HOD finalises the decision, with approval resulting in the issuance of an appointment letter confirming permanency.
The purpose of the collective agreement is to ensure that only educators who meet the eligibility criteria and occupy genuine, funded posts benefit from conversion. It requires the principal, SGB, District, and Department to act in accordance with Section 6B of the Employment Equity Act, meaning they may not unfairly discriminate or act arbitrarily in employment practices. The educator must provide complete and accurate documentation, after which the responsibility shifts to the employer to manage the process correctly. A purposive reading of the agreement makes clear that qualifying temporary educators should be granted permanent status unless there is a legitimate reason for exclusion, such as insufficient qualifications, lack of SACE registration, or the absence of a funded vacant post.
As noted earlier in this award, my role is not to assess whether the respondent acted fairly, but to determine whether the applicant, in accordance with the proper interpretation of the collective agreement, met the stipulated requirements and whether the respondent correctly applied those provisions. The inquiry is therefore strictly limited to compliance, specifically, whether the applicant satisfied the eligibility criteria set out in Clauses 4.2 and 4.3, rather than any broader question of fairness.
The facts showed that she satisfied four of the five requirements under Clause 4.2. She had continuous employment for at least three months, was registered with SACE, held South African citizenship or permanent residence, and was a fit and proper person. The only disputed element was proof of her qualification. The transcript submitted (Annexure F) was incomplete, containing only three of eight pages. The applicant testified that she had supplied the full transcript before June 2024 and again before November 2024. However, the Collective Agreement requires documented proof of qualification, not merely an assertion. On the official record, only a partial transcript was available, preventing the respondent from verifying the full qualification, and therefore, Clause 4.2.1.2 was not satisfied.
In addition to eligibility, the procedural requirements under Clause 4.4 were not fully met. Clause 4.4.2 requires the principal and the School Governing Body (SGB) to provide joint written confirmation to the District Office, including a conversion certificate verifying the existence of the post and that no excess staff are present. Annexure G partially fulfilled this requirement; however, the conversion certificate lacked the signature of the District Director or Circuit Manager, a mandatory element under the clause. Clause 4.4.4 further mandates that the Department may only process the application once all eligibility and procedural documents are complete. Because the official record included both an incomplete transcript and an unsigned certificate, the Department could not proceed with the conversion.
Finally, Clause 4.3.3 expressly empowers the Department to refuse the conversion of a temporary educator if certain conditions are met. These include: where conversion would contravene principles of equity, redress, and representivity, or the democratic values in section 7(1) of the Employment of Educators Act (Clause 4.3.3.1); where the Head of Department decides to follow the normal recruitment and selection processes (Clause 4.3.3.2); where the temporary appointment arose from a short-term increase in workload not expected to endure beyond 12 months (Clause 4.3.3.3); or where the specified procedural requirements have not been complied with (Clause 4.3.3.4). In the present case, the applicant did not meet all eligibility criteria, and the procedural steps required by Clauses 4.4.2 and 4.4.4 were incomplete. Accordingly, the respondent was entitled, in terms of Clause 4.3.3.4, to decline the conversion.
In conclusion, the applicant failed to satisfy the substantive eligibility requirements and the prescribed procedure under Collective Agreement No. 2 of 2024. The respondent therefore acted within its powers in declining the conversion.
The final issue concerns costs. The issue arose from the conduct of the previous union official, Mr. Mtabela, who abandoned the case during the first sitting. A directive was issued requiring him to provide written reasons for his absence and to explain why costs should not be awarded against him or the union. Despite this opportunity, no affidavit or explanation was submitted. His colleague, Mr. Mtolo, confirmed that he could not speak on Mr. Mtabela’s behalf and emphasised that it was his responsibility to comply with the directive.
In the absence of any explanation or affidavit from Mr. Mtabela, and with no argument from Mr. Mtolo as to what prejudice an order for costs would cause, I conclude that costs are properly awarded against the union. Mr. Mtabela’s conduct was frivolous and obstructive, and the union must bear responsibility for its official’s failure to engage with the process as required.
The union must therefore reimburse the ELRC the commissioner’s daily fee. The wasted costs are limited to the proceedings of that day, as the respondent did not incur any expenses.

Award

The respondent, the Education Department of the Western Cape, applied the provisions of the collective agreement correctly when considering the applicant’s, Astrid Townsend’s, conversion application.
The union is ordered to reimburse the ELRC for the commissioner’s daily fee in respect of the hearing held on 12 May 2025. The payment must be made by no later than 30 September 2025.
The applicant’s case is dismissed.