05 May 2025 -ELRC900-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA MS TEAMS VIRTUAL PLATFORM
Case Number ELRC900-24/25WC

In the matter between:

SOUTH AFRICAN DEMOCRATIC TRADE UNION (SADTU) ON BEHALF OF A. SIPHANGO
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

The arbitration was held in Mitchells Plein on 18 March 2025 and on MS Teams virtual platform on 11 April 2025.
The applicant was represented by Mr. T. Fortuin a shop steward. The respondent was represented by Mr. S. Daniels, an assistant director.
In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

THE ISSUE IN DISPUTE

I must decide whether the applicant qualifies for conversion to a permanent position as provided for in Collective Agreement 2 of 2024.

SUMMARY OF EVIDENCE AND ARGUMENT

It was common cause that the applicant is an educator at the Dr. Nelson Mandela High school since May 2023.
She teaches Isixhosa in a post where the incumbent had resigned.
It is in dispute that the applicant is in a substantive vacant post from 2023 to current.
It is in dispute that the applicant is in an additional post. There are no documents on e-recruitment to be considered for conversion.
Each party submitted a bundle of documents into evidence. No objections were recorded.
It is the contention of the applicant that she had been in a vacant substantive post (VSP) since 2023 as the incumbent in the post had retired.
Therefore, contends the applicant, in terms of the collective agreement, the school should have applied for her conversion from the contract position she was in, to that of a permanent employee.
She contends further that she had not been consulted with when her post was changed to that of an additional post. The applicant contends that the post she is in is still a VSP.
The respondent contends that the applicant ought to have lodged a dispute in 2023 within 90 days of the dispute arising. That is therefore not part of this dispute.
The applicant is in an additional post so does not meet the requirements for a conversion.
The applicant testified under oath on her own behalf. Clinton Booysen testified under oath for the respondent.

The evidence for the applicant

When the applicant was appointed on contract in the post from which Ms. Meje retired it was a VSP.
Thereafter the deputy principal, Ms. Pretorius(Pretorius) advised her not to apply for conversion to a permanent position as she was new i.e. a student teacher.
The applicant was not a student teacher at the time.
In April 2024 the applicant was again appointed on contract until 31 December 2024.
In October of 2024 she learned that the post was an additional post and not a VSP. She had no knowledge of how this had come about and had not been consulted in that regard.
After consultation with the principal and deputy principal and the circuit manager, they could not give her an explanation as to how this had happened.
Pretorius had apologised and had promised her a VSP once one became available.
She is still at the school in the same post and teaching the same subjects.
Under cross examination she confirmed that she had not applied for conversion. This was the case during the time she had been employed on all the temporary contracts which she had signed.
Other educators at the school had not applied for conversion but had simply been given nomination forms.
She had not applied because she had been told there were no vacant posts. She however agreed that conversion must be applied for in order that one may be considered therefor.
She was not going to apply for conversion as she had not been given a nomination form.
She had signed the nomination form dated 8 April 2024 at page 3 of the applicant’s bundle of documents and so did the principal and circuit manger. This form had been given to her by the principal.
The document states that the conversion is subject to approval from the respondent’s head office.
At page 16 of the respondent’s bundle of documents her persal details shows the same date as the nomination form viz. 8 April 2024.
It shows further that the post number is 377 and shows this to be an additional post.
This was however not communicated to her and is new to her. She had expected to be converted when she had completed the nomination form.
It was the responsibility of Pretorius to have applied for her conversion.

The evidence for the respondent

Booysen is employed as a human resources officer in the establishment section.
Page 16 of the respondent’s bundle of documents, which is a persal printout, shows the applicant appointed in an additional post on the school establishment.
It is a post created against a vacant promotional post when such vacant promotional post exists on the school establishment.
The additional post 377 was therefore created for that vacant promotional post in order to appoint a PL1 educator.
As the applicant was in post 377 which is an additional post she would not qualify for conversion as it is not a VSP.
The respondent knows the number of posts and the nature thereof that must be on the school establishment. The school would submit the nomination forms and the respondent checks whether the appointment could be made in a retirement post.
If it were correct then the appointment would be made. If a PL1 educator retired from a post that vacant post would be a PL1 VSP.
Nowhere on the form does it say who retired from the post.
Page 2 of the applicant’s bundle relates to 2023 and not to 2024.
The department of education(the department) does not know who the principal nominated in the post as it would merely look at whether it was a vacant or promotion post.
The principal is supposed to know the number of vacancies at the school. The department does not convey this information to the school.
The principal must make sure of the number of vacancies and categories at the school. If there is a HOD vacancy at the school, a PL1 educator from the school will be appointed to act in the post and an additional post will be created against the vacant HOD post.

ANALYSIS OF EVIDENCE AND ARGUMENT

It is clear from the collective agreement itself that conversion from a contract position to a permanent position is one way of attaining a permanent position as an educator in the employ of the respondent.
This route of attaining such permanency clearly has its own conditions that must be complied with for permancy to be attained via conversion.
In particular, as is clear from the collective agreement itself the post occupied by the applicant for conversion must be a funded VSP.
It is furthermore clear from the evidence presented at this arbitration that the post occupied by the applicant was not a funded VSP but rather an additional post.
This is clear from the evidence of Booysen which was to the effect that the additional post had been created post number 377 as reflected in the respondent’s persal system as shown at page 16 of the respondent’s bundle of documents.
It is to be noted further that the department dealing with the composition of the staff establishment at the school is clearly one occupied with the operational needs of the department and therefore to ensure that the staff establishment is correct from the perspective of the number of educators and their categories at the school.
Thus the attainment of permanency of an educator as a consequence of conversion will necessarily form part of this objective to satisfy the operational needs of the respondent within the staff establishment at schools within its jurisdiction.
This is within the prerogative of the respondent and may be challenged but not within the context of a dispute pertaining to the non conversion of an educator.
In casu however it is clear that the post is an additional post as reflected in the respondent’s persal system
For the purposes of collective agreement 2 of 2024 the post in question must be a funded VSP for conversion to be successful.
The contention of the applicant that the post was a VSP pertains in respect of 2023 when the applicant had been appointed on a fixed term contract in which she alleges an unfair failure to convert but which she had not pursued as an allegation involving an expectation to be appointed on a permanent basis through conversion.
The applicant therefore cannot rely on the circumstances which prevailed at the end of her earlier 2 fixed term contracts without having challenged the fairness thereof within the time-frames permitted for such challenge.
It is also clear that the final say in matters of conversion lies with the department as it must approve the nomination of the educator for conversion.
As stated above this the department does with reference only to the staff establishment which reflects the number of posts at the school and their categories and which is established in respect of the operational needs of the school.
In the circumstances the department has conducted itself in the manner that it does when executing its function and has not approved the nomination of the applicant for conversion as there is no funded vacant substantive post at the school when the nomination came before it.
The most fundamental requirement stipulated in the collective agreement 2 of 24 has therefore not been met and the applicant cannot be converted.