08 April 2025 -ELRC905-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC)

(GAUTENG PROVINCE)

AWARD

Commissioner: Amos Mthimunye
Case No. : ELRC 905-24/25GP
Date of the : 04 April 2025

IN THE DISPUTE BETWEEN:

PHUTI KAIZAR MASHILO APPLICANT

and

HOD, GAUTENG DEPARTMENT RESPONDENT
OF EDUCATION

DETAILS OF HEARING AND REPRESENTATION
[1] This was conciliation process set down for hearing at 09h00, on 25 March 2025. The applicant, PHUTI KAIZAR MASHILO was present and represented by Mr Chris Nomandindi (SADTU Shop steward), while the respondent, GAUTENG DEPARTMENT OF EDUCATION was represented by its official, Ms Thuli Mvubelo.
BACKGROUND INFORMATION TO THE DISPUTE
[2] The applicant is currently employed by the respondent as an Educator. He has referred a dispute about interpretation and application of the collective agreement, Collective Agreement No. 1 of 2021, Recruitment and Placement Procedures for Educators at Schools. He is aggrieved in that the respondent did not invite SADTU to the District Grievance Committee (DGC) meeting held on 13 August 2024.
[3] The respondent handed in a bundle of documents which was accepted and marked “R”.
[4] The proceedings were digitally recorded, and handwritten notes were also taken.
[5] The applicant is seeking that I order the respondent to reconvene and reconsider the matters which were placed on the DGC agenda on 13 August 2024.
[6] The dispute remained unresolved, and the arbitration process commenced. Hereunder is a brief account of the arbitration in terms of Section 138 of the Labour Relations Act 66 of 1995, as amended, (hereinafter referred to as the LRA).
COMMON CAUSE ISSUES
[7] The DGC held a meeting on 13 August 2024 to consider grievances of the Educators of Zitikeni Secondary School.
[8] The applicant was not part of the Educators who lodged grievances that were to be considered by the DGC on 13 August 2024.
[9] The applicant did not lodge any grievance.
ISSUES IN DISPUTE
[10] The respondent had invited SADTU to be part of the DGC meeting held on 13 August 2024.

ISSUES TO BE DECIDED
[11] The interpretation and application of the Collective Agreement.
[12] Appropriate relief, if any, including any appropriate order.
SURVEY OF EVIDENCE AND ARGUMENTS
Hereunder is the summarised evidence of the parties:
Summarised version of the applicant
[13] The applicant, Mr Phuthi Kaizar Mashilo testified under oath.
The respondent, being the District Ekurhuleni North, has breached clause 17.5.1 (d) (iii) of the Collective Agreement No.1 of 2021, Recruitment and Placement Procedures for the Educators at Schools in that the respondent failed to invite SADTU to the DGC meeting held on 13 August 2024.
He holds a position of Secretary in SADTU, Tembisa North branch. All invitations for the DGC meeting are sent to him. The respondent did not send an invitation to him for the DGC meeting of 13 August 2024, thus breaching the provisions of the collective agreement.
Summarised version of the respondent
[14] The respondent’s witness, Mr Peter Nkosi testified under oath that he is employed by the respondent as Deputy Chief Education Specialist (Labour Unit), based at Ekurhuleni North District office, Benoni. His job responsibility is to ensure that the grievances of the Educators are being heard. He invites at least Two (02) trade unions to sit in the DGC meetings. It is compulsory that SADTU must be invited in all DGC meetings as it is the majority trade union.
[15] He contacted the chairperson of SADTU, Mr Kubheka to invite SADTU to the DGC meeting held on 13 August 2024. Normally he would send invitations of SADTU to the applicants. He chose to contact Mr Kubheka because about the DGC of 13 August 2024 because it involved the school where the applicant worked.
[16] On 13 August 2024 he did not attend the DGC meeting. However, it was reported to him by the officials he delegated to attend the said meeting that SADTU was represented by Ms Mamukgage Tjebane in that meeting. He was told that Mr Richard Rihlamfu also came to the said meeting to represent SADTU but that he was requested to be excused because SATDU was already represented by Ms Tjebane.
ANALYSIS OF EVIDENCE AND ARGUMENTS
[17] The applicant required me to interpret clause 17.5.1 (d) (iii) of the aforementioned collective agreement. Clause 17.5.1 (d) (iii) reads: “Each District will establish a District Grievance Committee (DGC) comprising of the following members: Union representation: One union representative per union that is a party to the provincial chamber of the ELRC (PELRC). The union representative may not have been part for the selection procedure (as member of the interview committee and / or observer) for the post in respect of which the grievance is lodged. The relevant trade unions must be invited to the DGC meeting in writing, indicating the time and venue of the meeting.”
[18] The applicant was aggrieved in that he alleged that SADTU was not invited and subsequently not represented at the DGC meeting of 13 August 2024. The applicant alleged that the respondent did not comply with clause 17.5.1 (d) (iii) of the collective agreement, hence this dispute.
[19] The applicant disputed that SADTU was represented because Ms Makukgage Tjebane is from SADTU Thembisa South branch. He was of the view that the invitation should have come to him as the Secretary of SADTU Thembisa North branch. However, the respondent contested the evidence of the applicant that SADTU was not invited and subsequently not represented at the DGC meeting of 13 August 2024. According to the respondent’s version which the applicant did not contest, the respondent invites SADTU to the meeting but not an individual person. Invitations are sent to SADTU because it is SADTU that is invited to a meeting.
[20] In this case the applicant referred a dispute as an individual, in his capacity as an Educator and / or employee. The dispute was not referred by SADTU in its capacity as the trade union. According to clause 17.5.1 (d) (iii), it is the trade union that should be invited to the meeting to form part of the DGC.
[21] It was common cause that Ms Tjebane was in attendance of the DGC meeting of 13 August 2024, and that she was in that meeting in her capacity as SADTU representative. Therefore, it means SADTU was invited to the DGC meeting of 13 August 2024 because a representative of SADTU was in attendance of that meeting.
[22] The applicant did not contest the evidence of the respondent’s witness, Mr Nkosi that he invited SADTU by contacting, its chairperson, Mr Kubheka, and that Mr Kubheka told Mr Nkosi that SADTU will send a representative. Although the respondent did not produce a written invitation as proof that it invited SADTU, I still believe the evidence of the respondent that it complied with clause 17.5.1 (d) (iii) of the collective agreement. It the respondent did not comply, SADTU would not have sent a representative, Ms Tjebane to the said DGC meeting.
[23] Considering the circumstances of this dispute, I noted that it was not SADTU that was aggrieved but that it was the applicant. However, it would have been better if it was SADTU that was aggrieved but not an individual since according to clause 17.5.1 (d) (iii) it is SADTU but not an individual, be it a Shop steward, or official of the trade union that is invited to the meeting. I also considered the fact that the collective agreement does not say it is SADTU branch that must be invited but that SADTU as a trade union. Then it is upon SADTU who they delegate to attend the DGC meeting.
[24] In the premises herein I came to a conclusion that clause 17.5.1 (d) (iii) if correctly interpreted, it does not apply to the applicant but that it applies to SADTU as the trade union that must be invited to the DGC meeting. Therefore, the applicant has on a balance of probabilities not succeeded to discharge the onus of proof that clause 17.5.1 (d) (iii) if interpreted correct, applies to him.
AWARD
[25] Clause 17.5.1 (d) (iii) does not apply to the applicant but that it applies to SADTU.
[26] The claim of the applicant is hereby dismissed.