IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC592-24/25WC

In the matter between

NATU obo Sisipho Mpopoma and 3 Other Applicants

and

Western Cape Education Department Respondent

PANELLIST: GC. van der Berg.
Award: 03 March 2025

ARBITRATION AWARD

    Details of hearing and representation

1. The arbitration hearing took place via digital video conference (ZOOM) on 22 November 2024 and 03 February 2025 at 09:00 respectively. The proceedings were both digitally and manually recorded. The applicant, Sisipho Mpopoma and others, were represented by Shakwana Sibusiso, an official of NATU. The respondent, Western Cape Education Department, was represented by Abigail Blankner, from the Department of Education. The dispute was scheduled for arbitration in terms of section 24 of the Labour Relations Act 66 of 1995 as amended (“the LRA”) as an interpretation or application of a collective agreement. Issue to be decided.
2. The dispute has been referred and categorized as a dispute about the interpretation or application of Collective Agreement Number 2 of 2024 and whether the four educators qualify to be converted or not. The four educators are Sisipho Mpopoma, Simamkele Gebe, Sinazo Songowaba and Lulama Ngoyi. Background to the Dispute
3. The first applicant referred the dispute to the ELRC after the dispute arose on 20 September 2024. and set down for arbitration on 22 November 2024. The representative of the applicant applied for the joining of six other applicants in writing on 22 October 2024. The parties were asked to present on record the application for joinder of the other six (6) applicants.
4. The representative of the applicants presented that in terms of Collective Agreement Number 2 of 2024 an educator who acts in a vacant position and substantive post for more than three (3) months must be converted into a permanent employee by the relevant provincial authority. This is a National Collective Agreement and is enforceable in the Western Cape. The union also represent the six educators in the same position as the applicant. Alongside Sisipho Mpopoma these educators arguing the exact same case, that they are acting in vacant posts, they have been acting in those posts for over three (3) months and the posts are substantively available. He stated that four (4) of them are in the same school and three (3) in a different school.
5. The representative off the respondent stated that the Department has no objection to join them to the case in question but they are not in the same school and the 1st applicant does not qualify for the position and the other six (6) are not in substantive vacant posts that means they are in promotional posts and as of this year (December 2024) the posts (05) came to an end. The following three (3) applicants will however be converted in December 2024 to permanent posts, and they will receive a letter in December 2024 accordingly. Their names are Axola Zenze, Zizanda Mabutho and Noxolile Krwele.
6. I made the ruling ex tempora that the three (3) names mentioned in paragraph 5 will not be joined to the case ELRC592-24/25WC as they will receive letters of permanent position in December 2024. The other three (3) applicants will be joined to the arbitration case namely Simamkele Gebe, Sinazo Songowaba and Lulama Ngoyi.
7. The parties did present opening statements and the respondent, and the representative of the applicants presented written closing statements, as agreed on or before 12 February 2025. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered. Survey of evidence and argument Documentary evidence.
8. Both parties submitted bundles of documents. The bundle of the respondent was marked as “R” pages 1-66, and the bundle of the applicant was marked as “A” pages 1-115. Both parties did not dispute the authenticity of the content of the bundles.
   Applicant’s evidence and arguments
   The first applicant, Sisipho Mpopoma, Teacher at Post Level 1, after having been sworn in, testified as follows:
9. She was employed as an educator post level 1 in October 2022 at the Lathi-Tha School of Skills and the position was advertised for an educator in Natural Science and she attended an interview. She was appointed in a substantive vacancy and told that according to the representative of the respondent she is not qualified to teach what she was teaching for two (2) years. She stated that she knows her subject for two (2) years now and she attended workshops. Another person was recommended and put on contract, and it is the same subjects as advertised and appointed in. The applicant was in a permanent post, and it was a substantive post.
10. Under cross-examination she confirmed that her qualifications appear on pages 29 to 34 of bundle “A” She had obtained a Post Graduate Certificate in Education (Senior Phase and further Education and training) and one of the subjects is Teaching Technology but none of the subjects was Natural Science. She also studied at Walter Sisulu University (WSU) and completed Financial Management 11 but also none of the subjects was Natural Science. She confirmed her registration with SACE and that the ID is hers. She confirmed that the principal (Witbooi) indicated in a conversation that she does not have the correct qualifications, and he did not recall it. The reason her conversion is unsuccessful is that she is not qualified to teach Natural Science as she is only qualified to teach Technology. She responded that Natural Science and Technology has the same curriculum.
11. Page 19 represents an extract of the Government Gazette and on page 19 states that the following could serve as a guideline in dealing with some of the more problematic areas. It further states: “The teaching of Natural Sciences requires competence in aspects of physical geography or environmental sciences, physics, chemistry, and biological sciences. However, the likelihood of finding graduates who have covered all of these in the same undergraduate study is very slim. A combination of at least two of these at first-year level (NQF Level 6) would be regarded as sufficient”. It was put to the applicant that nowhere in her qualifications does she have subjects that deals with Natural Science and therefore she was not converted. She stated that the school kept her there for two (2) years and the Education Department had no problems.
12. On page 11 of bundle “R” in the Collective Agreement 2 of 2024 in Annexure A under point 4.2.1 it states: “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 fit and proper person.” The applicant stated that she is extremely disappointed as the level of teaching at the school is very low and different from primary and secondary schools.
13. The first applicant stated that the principal did not ask her for qualifications of higher education or informed her about the required qualifications. In April 2024, the principal called them and told them that the application for conversion was successful, and they are now permanent as from 01 July 2024, but she never received any letter or contract. She was told that a contract educator is not permanent, and the contract lapses after time. She agreed that she still received, since July 2024, the 37% on her salary for medical. Her contract was extended to 31 December 2024, and she received no appointment letter. Her name appears on the list, but she was not converted. She again stated that the principal stated it in the staff room and the acting principal was also present.
14. Under re-examination she confirmed that the position was advertised, and she applied for it. They requested an educator that can teach Natural Science, and the principal was present in the interview. The list of names presented by the Union was not the complete list and when the second list was presented it was accepted by the applicant and her representative which indicated that the applicant was not converted. The second applicant, Lulama Ngoyi, Teacher at Post Level 1, after having been sworn in
    testified as follows:
15. The second applicant was appointed in January 2023 to educate in English as she replaced the educator who resigned in 2022. The post was advertised, and it specified that it must be an educator who can present English and Life Skills. She was never told that she was appointed in a temporarily position. The position was converted to permanent after three (3) months service and she has Life Skills as a subject in her qualifications and it is presented at this school at a low level of teaching. A person not from the school was present as part of the interview panel and the other was part of management. The principal was also present, and she was successful and appointed. She received no letter to say that she was appointed in a substantive post.
16. Under cross-examination the following was read on page 11 of the Collective Agreement 2 of 2024 which states in Annexure R under point 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 fit and proper person”. The applicant is not in a substantive vacant post and cannot be converted. She was informed as staff she is not affecting the Department, and everybody is still the same in October 2024 for the next year.
17. On page 20 of bundle “R” appears the staff compliment for the school and a post 01 means a vacant position and her name does not appear on the staff compliment. On page 21 her name appears under 05 = 3 vacancies. 01 means a substantive vacant post and 05 means an additional post and the applicant confirmed her name under 05. In this staff compliment there is no substantive vacant post on a post level 01. The applicant responded that she knows that she was appointed to replace the educator who resigned in 2022.
18. Under re-examination she confirmed that the person she replaced was in a post level 1 post and he was permanently appointed, and she is qualified to teach the subjects that forms part of her qualifications. She served more than three (3) months, and she is registered with the Council of Educators, and she stated that there is no reason that she is not to be converted to a permanent position. The third applicant, Simamkele Gebe, Teacher at Post Level 1 at Sophakama Primary School,
    after sworn in testified as follows:
19. The third applicant was appointed on 01 January 2024 in a vacant post as the previous educator passed away. The subjects she teaches are IsiXhosa, and Life Skills for the foundation phase class plus English. The position was advertised for a foundation phase educator in a substantive post as when she came in, she was told it is a substantive vacant post, and the person died who was previously in the post. She has more than three (3) months served in this post and has a SACE certificate and the post at the school is available. The school establishment in 2025 will be 37 and there are only 36 currently meaning one post available.
20. Under cross examination she was referred to Collective Agreement 2 of 2024 regarding eligibility for conversion under 4.2 and it was read again and applicant agreed with it. The staff establishment on page 46-48 indicates the name of the applicant in yellow as a 05 post which means additional to the staff compliment and a growth or promotional post. She was not in a substantive vacant post and that is the reason she could not convert to a permanent position. The applicant stated that is a total confusion as she was in a vacant post, and she has the qualifications for the post.
21. Under re-examination she confirmed that the explanation does not make sense as she does not understand why she is now in a promotional post as she was told that she was replacing the educator who died in 2022. She further claimed that she is in a substantive vacant post and can be converted to permanent. The Collective Agreement confirmed, according to her, that she meets the requirements as stated in 4.2.1. to 4.3.4. as she has more than three (3) months service and she is registered with SACE. She is in a founding phase post, and she has a four (4) year degree and is a SA Citizen. There is no reason not to be converted to a permanent position. The fourth witness (not an applicant), Sibalele Nxokwama, Teacher at Post Level 1, after sworn in testified as follows:
22. The witness stated that his other responsibilities included that he was the treasurer of the SGB, and he supervised some of the educators previously. He is present in a supervisory capacity and two of the educators arrived under his supervision and applicant number three took over the post that the educator occupied that passed on. Miss Lulama Ngoyi arrived after the English educator resigned. The position was a substantive post and at no stage did the principal of the school indicates that the status of the position changed. In a staff meeting he presented a list of educators who were going to be converted to permanent positions and there were two teachers on the list. Lulama Ngoyi was not appointed in a promotional post as she arrived and took over the post. It is news to the witness that this position was a promotional post and not a substantive post.
23. It was stated that Sisipho Mpopoma was not qualified to teach Natural Science as she was supposed to teach, and the witness did not respond. He stated that educators are appointed to teach different subjects, and he said that all subject weight allocations are not the same. He stated that there is no difference between Natural Science and Technology but recently it was separated as previously it was taught as one subject at the special school. He concluded that Sisipho Mpopoma qualifies to teach Natural Science.
24. Under cross-examination he confirmed that he is a post level 1 educator, and it is not wrong in the recruitment of educators where they verify qualifications and eligibility of educators. It states in the Government Gazette no 40610 dated 10 February 2017 in the Policy on the Recognition and Evaluation for Employees in Education as follows under the heading To offer a teaching method in Life Orientation for the FET phase: “ Life Orientation is an inter-disciplinary subject that draws on and integrates knowledge, values, skills and processes embedded in various disciplines such as Sociology, Psychology, Political Science, Human Movement Science, Labour Studies and Industrial Studies. It is recommended that the prospective student should offer a combination of at least two of the fields in his/her first degree for example, Human Movement Sciences and Psychology. The teaching of Natural Sciences requires competence in aspects of physical geography or environmental sciences, physics, chemistry, and biological sciences. A combination of at least two of these at first year would be regarded as sufficient”.
25. On page 29 of bundle “R” appears the post graduate certificate in education (Senior Phase and further education and training) issued on 08 December 2023 to Sisipo Mpopoma and further qualifications up to page 35. It is clear from this that the applicant has no subjects in Natural Science in her qualifications. He stated that this policy came after she had already taught it, and the policy did not say suitable to teach Natural Science. It was put to him that the policy came from 10 February 2017 and prior to her appointment (first applicant). The fourth applicant, Sinazo Songowaba, Teacher at Post Level 1 at Silverleaf Primary School,
    after sworn in testified as follows:
26. The applicant testified that she was appointed in January 2024, and it was a vacant post, and she was teaching grade 4 and 5 Natural Science and Technology, Life Skills and IsiXhosa. Her qualifications are Intermediate Phase, and she has a BA degree, and Languages, Natural Science and Life Skill were subjects in her degree. She did both Natural Science and Technology and these are both subjects in her qualifications and she is teaching it at Grade 5 level. She got information about her appointment and later the contract was extended to 31 December 2024, and she received a letter. She did not substitute anybody, and she is in a substantive position. The school establishment at the school is 37 or 38 and she is not sure whether her position is included. She further stated that the post was advertised as well as the subjects to be taught. She has the necessary qualifications for the post, and she is registered with SACE, and she is a South African Citizen, and she is in a substantive post.
27. Under cross-examination the applicant agreed to what is written on page 9 of bundle “R” under 4.2 from 4.2.1 to 4.2.4. and what is meant. The school staff establishment appears on pages 53 to 55 of Silverleaf Primary School and the applicant’s name is highlighted as a 05 position. She was therefore not in a substantive vacant position as she is carried against the vacant post which is a growth or promotional post.
28. She confirmed that she was appointed at the primary school in January 2024 with subjects as Natural Science and Technology for grade 4 and Life Skill for grade 5. She is in possession of a Bachelor of Education degree on an Intermediate Phase and the end of December 2024 her contract terminated. She said that she wanted her position back and on page 53 of bundle “R” it is confirmed that she worked at Silverleaf Primary School. She confirmed that all educators are post level 1 and it represents the staff establishment on 13 November 2024. The applicant agreed that there were no vacancies and the reason she was not converted as she was not in a substantive vacant post, and she was carried against a promotional post which she denied.
29. Under re-examination she stated that she does not really understand what a substantive post is, and nobody was in an acting post at the school. She agreed that she was appointed in a vacant post that was supposed to be made permanent after three (3) months. The fifth witness for the applicants, Sindiswa Maguguwuna, Head of Department at Silverleaf
    Primary School, after sworn in testified as follows:
30. The witness stated that he is in the position of Head of Department since 2018, and he is in a permanent position. Nobody is in an acting position and all educators are appointed permanently. He stated that the fourth applicant could not be converted as she was in the place of a person acting but now all are in permanent positions.
31. No questions were asked under cross-examination by the representative of the respondent.

Respondent’s evidence and argument
The respondent called two witness to testify.
The first witness, Prudence Michells, Assistant Director in Recruitment and Selection, after having been sworn in, testified as follows:

32. Her responsibility in the Directorate is advertising all posts including the principal posts and conversions of posts. She was told that all four (4) applicants’ conversions were unsuccessful, and she explained the criteria in detail. She said that all 12 pages is to be uploaded at the school, and she downloaded it and looked at the qualifications first and verified the documentation. A3 is the qualifications that need to be taught by the teacher at the school. She is looking at the qualifications to see firstly whether the teacher is suitably qualified and secondly to established whether the school has a vacant funded position. A 05 position is a promotional or growth position and a 01-post vacant funded position. She was told that there were no vacant funded positions and that was the reasons for non-conversion. She then proceeded and when an application is approved from the establishment and when finalised, she will give an appointment letter.
33. The witness testified that if she looks at the A3 she asked herself whether the qualifications is on the foundation phase or on the FET phase and if the teacher can teach on the required phase. If not, the teacher is not appointed, and documentation is sent via email to the Department that this teacher is not suitable to teach the phase and subject. The first applicant’s A3 for the school can be seen on pages 25 and 26 and her name is S Mpopoma. Her subject is Natural Science, and she was in an additional post (01). Her qualifications appear on page 29, and she has a postgraduate qualification, and the witness is not able to evaluate her qualifications.
34. She stated that the qualifications on page 30 of “R” indicates that at Walter Sisulu University she obtained a bachelor’s in management as well as a Normal Diploma in Management. Due to her qualifications then the witness must look at the person’s transcripts to see what the teacher taught. On page 32 and 33 is the transcripts of the first applicant at Unisa and WSU. On page 34 appears the regional diploma in management and at UNISA teaching technology. She is not suitable to teach Natural Science but only at a FET institution-High School. She looked at the foundation phase and was looking for Natural Science and found no proof that the first applicant can teach it.
35. On pages 17 and 18 is the evaluation of the qualifications and these guidelines must also be used and on page 19 it states: “The teaching of Natural Sciences requires competence in aspects of physical geography or environmental sciences, physics, chemistry, and biological sciences. However, the likelihood of finding graduates who have covered all of these in one and the same undergraduate study programme is very slim. A combination of at least two of these first-year level (NOF Level 6) would be regarded as sufficient”. The first applicant was found not suitable to teach Natural Science.
36. Under cross-examination she confirmed that the applicant was teaching on post level 1. The witness stated that it took 1 to 3 months for the conversion of a position. The school has the option to advertise a conversion post. The educator needs the requirements to be able to teach Natural Science. The witness looked at all options, but the first applicant cannot teach Natural Science. It was put to the witness that the first applicant was already an employee in the school and was still on contract when she applied for conversion. She confirmed that she is not dealing with the establishment but 01 is a substantive post. But the incumbent must be suitably qualified.
37. Regarding the second applicant Lulama Ngoyi, the application form appears on page 37and her subject is English and Creative Arts. On page 21 appears the establishment and next to her name 05 meaning a promotional or growth post. The witness stated that she received the application of the second applicant and handled it the same as for the first applicant. The applicant was suitably qualified for the subjects but not in a vacant funded post and 05 means no vacant post.
38. Regarding the third applicant, Simamkele Gebe, Teacher at Post Level 1 at Sophakama Primary School the witness testified that the applicant teaches Grade 1 Foundation Phase, and her subjects are first language, second language, and Life Skills as can be seen on page 51 of bundle “R”. Her A3 qualifications appear on pages 46 to 48 and on page 48 it indicates she was in a post 05, and not in a funded substantive post and was not converted.
39. Under cross-examination the witness was referred to page 51 and she confirmed the details as mentioned before. It was put to her that the third applicant was replacing a teacher in a permanent position that died. The witness stated that she is not sure in which position the teacher was that passed on and whether she was in a post 01 or 05. She was asked to explain no vacancy and she said that every year the school gets an establishment letter with the numbers for the following year.
40. Regarding the fourth applicant, Sinazo Songowaba, Teacher at Post Level 1 at Silverleaf Primary
    School, the witness testified that on page 55 to 57 her details appear. She taught Grade 4
    IsiXhosa and NST for grades 4,5, and 6. Her post next to her name is indicated as a post 05
    meaning she was not in a substantive post and therefore not converted and she was not replacing
    anybody. The second witness, Harry Arthur, Establishment Section, after having been sworn in, testified
    as follows:
41. The witness works in the directorate of maintenance of staff and allocation of posts responsible for recruitment and selection. He was told that there are four (4) applicants from three (3) different schools due to different reasons. He explained on page 20 of bundle “R” the staff establishment and 01 and 05 posts. It shows that all posts are filled and under HOD it shows vacancy (3). No post level 1 vacant and the principal submits applicants additional in 05 posts. Post level 1 is the reflection of Level 1 educators, and a 05 post is created. He showed that the first person highlighted is the first applicant and she is in a 01 post no 40. The first applicant was in a substantive post. The last three (3) applicants were in 05 posts meaning they were not in substantive posts.
42. He stated that the establishment in a school is done every year in November and then the determined establishment is for the following year. There is an allegation that he changed the 01 posts to 05 on his own and he denied it and said that he will never do it. The principal logged the nominations on the system and A3 forms part of the nomination form meaning the qualifications of applicants. The principal decided on 01 or 05 posts and in his department, they will never change the posts without the communication from the principal in a school. He stated that if somebody died who is in a permanent or 01 post the post will stay the same. He was referred to pages 46 and 47 of bundle “R” and it indicates that the applicant (Gebe) was in a 05 post, an additional promotional post and therefore could not be converted to a permanent position. He emphasised that if someone passed away in a 01 post it will stay, but if it is a 05 post it will fall away.
43. The second witness confirmed that the fourth applicant as per pages 55 to 56 was in an additional unfunded post 05. If the staff establishment in any school is amended on the system by him on instruction from principals, he exits and leave the system.
44. Under cross-examination he was referred to page 55 of bundle “R” and he stated that there was a HOD acting post and an additional post was created on 13 November 2024. The nomination form of the fourth applicant was dated 14 April 2024 and it is long before the establishment form. He was again accused that he tampered with the posts on the system and again said that he will never do it. He was referred to page 21 of bundle “R” and stated that the first applicant was in a 01 post and the third applicant in a 05 post, and he is not aware whether the educator who passed away was in a 01 post. He is not aware what informs the principal to either create or change a post.
45. On page 51 it is clearly stated in the application form of the third applicant that the position she was appointed in became vacant due to the death of the previous teacher in the position. The witness confirmed again that if it was a 01 post it will stay and if a 05 post it will fall away and a new 05 post created. The witness stated that he was not aware whether the third applicant replaced someone in a 01 post.
46. Under re-examination the witness confirmed that he will never tamper with the staff establishment. It said nowhere that the teacher who died was in a permanent position. He confirmed that on 13 November 2024 the establishment letter was presented to every school. Closing arguments
47. The respondent and the representative of the applicants sent written closing arguments by 12 February 2025, as agreed on 03 February 2025. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award. Analysis of evidence and argument
48. The starting point in determining matters of this nature would obviously be to study the relevant parts of the collective agreement relied upon. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Employment of Educators Act 76 of 1998 and secondly on the interpretation and application of the Educator Labour Relations Council (ELRC) Collective Agreement No 4 of 2018. Further I will refer to the different testimonies of the applicants and the witnesses of the respondent, as well as the closing submissions of the two parties.
49. I am required to resolve a dispute about the interpretation and application of Collective Agreement Number 2 of 2024 and whether the four educators qualify to be converted or not. The four educators are Sisipho Mpopoma, Simamkele Gebe, Sinazo Songowaba and Lulama Ngoyi.
50. It is the submission of the representative of the four applicants that he wishes to register that the matter before the Commissioner is about conversion of educators from temporary to permanent posts. The matter is informed by Collective Agreement 2 of 2024, initially the Collective Agreement was 4 of 2018, and it was then amended in 2024 with slight changes. The collective agreement is informed by the ILO convention 158 of 1998 of the International Labour Organization which aimed to safeguard or protect contracts of employment for specified periods.
51. He wishes to clarify that the recruitment of educators at school is a responsibility of the School Governing Body according to section 20 of South African School Act, which includes the school principal. The school has a responsibility to advertise a post informed by the curriculum needs of the school and recruit the best candidate. The dispute presented by the applicants will be presented separately so the merits of each applicant are not the same.
52. The applicant, Mpopoma, was appointed in 2022 by the department of education in the Western Cape in a substantive post. The educator was appointed based on the curriculum needs of the school. The educator stated that she applied for the post, which was advertised by the school, went for an interview and got appointed. The educator testified that she met the requirements needed for the post. The employer does not dispute that the applicant was appointed for her qualifications. Collective Agreement No 2 of 2024, section 4.1 states that the application of the collective agreement is meant for educators who are appointed on substantive and vacant level 1 post. Mpopoma testified that she was appointed to the vacant post, and it is a substantive post she served for more than three months in the post. The employer did not dispute that the post is vacant, and it is substantive. According to the Collective Agreement an educator must meet the following requirements for her to be converted to permanent 1.
53. The educator must be a citizen of South Africa, the educator must be registered with the South African Council of Educators, the educator qualifies for the post in question and the educator served more than three months continuous in the system. Based on the evidence presented by the employee or educator she ticked all the boxes in terms of the requirements. The applicant testified that she has been attending workshops at CTLI which are meant to capacitate teachers and have better understanding for the subject she is teaching. The respondent suggested to the applicant that the principal informed her that there would be a problem with her conversion. The applicant disputed the version on record. The applicant testified that the principal told them that they will be converted in July 2024
54. The applicant testified that she is qualified to teach the subject since she has technology as a subject. She indicated that the content in the caps document which is a document used to plan for teaching is the same. The respondent argues that she does not qualify to teach the subject which is Natural Science. The employer never had any issues with the appointment of the educator since 2022, the employer never had issues with her performances in teaching the subject. The mentor to Mpopoma testified that she is the best teacher.
55. The educator testified that she was subjected to workshops by the department which is a norm for all educators with the aim of capacitating. Harry Arthur, a witness called by the respondent testified that according to the post establishment on the bundle of the respondent it shows that Ms Mpopoma was appointed on a permanent post, meaning the department has a responsibility to convert her to permanent. The educator qualifies to be converted to permanent looking at the fact that the employer had never raised any issue with her after appointment. The respondent is responsible for the appointment of educators, they issued an appointment letter simply because they believe that the educator meets the curriculum needs of the school. It cannot be correct that the employer only realizes or suggests that she does not qualify for convention, but they kept her in the post from 2022.
56. Applicant number two, Gebe, was appointed in a substantive post replacing someone who passed on by the name of Lumka. The applicant testified that her recruitment took place after one educator passed on. She was allocated to the same class and the same duties as the educator. The applicant testified that the educator she replaced was on a permanent post, the respondent did not dispute it. Applicant Gebe meets all the requirements to be converted to permanent, she is a citizen in this country, she is registered with the South African Council of Educators, and she is qualified to teach Grade 1. The respondent disputed that she was in a 01 post and proves by documentation that the educator who passed on was in a 05 post.
57. Applicant number three, S Songqwana, testified in the arbitration that she was appointed in a substantive post in January 2024. She said that she was not replacing anyone since the post was vacant. The respondent stated that the educator could not be converted because there are two Hod’s who are acting at school. One Hod testified that she is not acting on the Hod post and her colleague is not acting, meaning there are no vacancies, which might be a reason for Ms Songqwaba not to be converted. The Hod also testified that the applicant was appointed to a substantive post. The applicant meets the requirements of the collective agreement.
58. Harry Arthur suggested that the school assumes that they are permanent, which is not true. Hod testified under oath that she is permanent and the other Hod is not acting. She emphasized that no one is acting at school, and the employer did not dispute that. Therefore, there is nothing which stops the employer from converting Ms Songqwaba to be permanent.
59. The applicant, Ngoyo, testified that she was appointed in a vacant post, she was not replacing anyone in the post. The applicant meets all the requirements which are in the Collective Agreement. She is a citizen of this country, she is registered with the South African Council of Educators, she has served the department for more three months as is prescribed by the Collective Agreement. The representative submitted that from the four applicants Ms Mpopoma it clearly indicated even on the bundle of the employer that she is in a substantive post, she has been capacitated by the respondent from 2022.
60. It is the submission by the representative of the applicants that all four of the applicants are eligible to be converted to permanent positions, as they all have different merits on their matters. He believes that the employer is supposed to convert those educators to be permanent.
61. It is the submission of the respondent that the applicants’ cause of action in this matter is based on the interpretation or application of Educator Labour Relations Council (ELRC) Collective Agreement 4 of 2018 which relates to “The appointment and conversion of temporary educators to posts on the educator establishment”. Section 6 (b) of the Employment of Educators Act (EEA), 1998 (Act 76 of 1998), makes provision for the conversion of the appointment status of educators from a temporary/contract position to a permanent position. A temporary educator means an educator who is currently appointed in an approved vacant post level 1 post. The conversion of a temporary appointment to a permanent appointment is done at the discretion of the Head of Department (HoD) and/or the delegated authority assigned to fulfil such function. In line with ELRC Collective Agreement 2 of 2024, the WCED adopted the following criteria for the conversion of the appointment status of educators from temporary to permanent positions in terms of section 6(b) of the EEA:

(1) The permanent appointment must be made to a vacant substantive post level 1 post.
(2) The post must reflect on the approved educator staff establishment of the school.
(3) The educator concerned must at the time of applying for conversion, have been employed in a temporary capacity for a continues period of three months.

62. It is the further submission of the representative of the respondent that the educator must satisfy the following criteria to be considered for the conversion of his/her temporary contract status to permanent:
    (1) Be professionally qualified for the education profession.
    (2) Be suitable qualified to teach the subject and in the phase in which the conversion appointment will be made.
    (3) Meet the inherent requirements of the post in which his or her conversion or appointment will be made and
    (4) Be registered with the South African Council for Educators (SACE).
63. The representative of the respondent further submitted that in support of their claims, NATU’s contention was that all applicants were in substantive vacant posts and qualified to be converted. The respondent in support of their case relied on the evidence of Ms Michaels, ASD: Recruitment & Selection pertaining to the conversion applications that were submitted, and criteria utilised as well as Mr Athur, Acting ASD: Recruitment & Selection in relation to the establishment of the schools. These individuals’ evidence came across as truthful, sincere and credible throughout their testimony.
64. It is the testimony of the first witness of the respondent that when an application for conversion is received via the e-recruitment online system, after a notification is received that the school has uploaded an application, her unit downloads the application. It must consist of 12 documents, and they would scrutinize the A3 form for the subject and phase that the applicant would teach versus the qualification of the applicant. When they check the qualification, if it is a straightforward teaching qualification, the application would be sent to establishment to verify if there is a substantive vacant post. If there is a post, establishment would provide the post number. She is aware that an “01” post means vacant funded post and “05” post means it is not vacant. If suitable, the post is vacant, and conversion approved the confirmation is prepared. In the case that not suitable as the A3 says foundation phase but applicant FET/Senior phase, the subjects in the applicant’s academic transcripts will be checked in terms of the Policy on the Recognition and Evaluation of Qualifications for Employment in Education. If the scrutiny of the qualifications proves that the applicant does not qualify, then the application will not be sent to establishment to confirm if there is a vacant funded post. The system will also be updated to indicated that the applicant is not suitable.
65. It is the representative of the respondent further submission that even though Ms Mpopoma was eligible to be converted, she did not meet the inherent needs of the school and thus her application could not be considered, and the remaining applicants did not meet the inherent requirements that the post be a funded substantive and vacant level 1 post.
66. Ms Mpopoma’s, first applicant, A3 and qualifications at page 25 &29 on bundle “R” indicates that she is teaching Natural Science for year 2 learners and holds a PCGE: Senior/FET Phase. Since the first applicant holds a PCGE, her initial qualification needed to be scrutinised which can be seen at page 30-31. For an educator to obtain a PCGE they would have needed to have done a national diploma and then the transcript of the national diploma was scrutinised. Page 34 is the transcripts for the first applicant’s national diploma which indicated lots of management and financial subjects. There was also a transcript from UNISA that was too scrutinised. Technology and Business Studies was part of Ms Mpopoma’s first qualification thus she was not suitably qualified to teach Natural Science. FET phase is high school grades 10-12 and Senior Phase is grades 7-9. As she is at a school of skills qualifications of educators are mostly looked at foundation phase as the learners have special needs, but also practical subjects are looked at, but the A3 for Ms Mpopoma specifically stated Natural Science.
67. Ms Ngoyi’s application followed the same process as Ms Mpopoma, however Establishment confirmed that the post she occupied was not a vacant funded post and therefore her application was unsuccessful. Ms Gebe’s application was declined as there was no vacant funded post and she was in a 05 post. Ms Songqwaba’s application was declined as there was no vacant funded post. The first witness of the respondent reiterated her role in the processing of conversion applications and confirmed that the collective agreement regarding conversions states the requirements for conversion is that it must be a vacant funded post, the educator must be suitably qualified to teach and must be in a substantive vacant post for three months In the case of Ms Mpopoma, even though she is in a substantive vacant post, she is not suitably qualified to teach Natural Science as indicated in her A3. The remaining applicants unfortunately are not in substantive vacant posts so thus were not eligible for conversion.
68. Mr Arthur stated in his testimony that he and his team ensured that the school’s establishment is in line with the allocated number of posts awarded to the school. If there is a vacancy the appointment of the educator (meaning post level 1) would be in that post however, if the vacancy is not at that level, an additional post would be created ”05” post for that educator. Ms Mpopoma was in a substantive vacant post and Ms Ngoyi was in an additional post (“05 post”). An additional post is not a substantive vacant post. New establishments for schools are implemented in December after the number of posts are provided. Therefore, the PERSAL records are accurate. He further stated that a promotional post cannot be filled by a post level 1 educator and therefore an additional post is created.
69. According to the respondent in the matter of WESUSA & Others vs Jacobs 2000 8 BLLR 977 (LC) the Court remarked that the onus will be discharged if the respondent can show credible evidence that its version is more probable and acceptable versions. The credibility and the improbability of what they say should not be regarded as a separate enquiry to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the respondent’s version, an investigation where the questions of demeanour and impression are measured against the content of a witness’s evidence, where the importance of any discrepancies and contradictions is assessed. Where a particular story is tested against the facts which cannot be disputed and against the inherent probabilities, so that at the end of the day one can say with confidence that one version is false and rejected with safety.
70. After making an analysis of the process, I find that the discretion to select candidates for conversion is done in line with the needs of the school and is entrusted to the SGB together with the principal to nominate said individuals. If this discretion is exercised in good faith in a rational and reasonable manner, it is not fair for the arbitrator to intervene.
71. I find that the four applicants, did not meet the inherent requirements for conversion. The applicants failed to discharge the onus in proving their cases as Ms Mpopoma, even though she is in a substantive vacant post, she is not suitably qualified to teach Natural Science as indicated in her A3. The remaining applicants unfortunately are not in substantive vacant posts so thus were not eligible for conversion. As indicated, the applicant bears the onus of proving the claim on a balance of probabilities.
72. Considering the above I make the following award.

AWARD

73. The first to fourth applicants Sisipho Mpopoma, Lulama Ngoyi, Simamkele, and Sinazo Songoqwaba cannot not be converted to permanent posts as the first applicant is in a substantive vacant post, she is not suitable qualified to teach Natural Science. The remaining three applicants are not in substantive vacant posts, so they are not eligible for conversion.
74. There is no order as to costs.

Signature:

Panelist: Gert van der Berg
Sector: Education Department of Western Cape