IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT VIRTUALLY

Case No. ELRC 1036-25/26 NC

In the matter between

WILMA LEWIS Applicant

and

EDUCATION DEPARTMENT OF NORTHERN CAPE Respondent

PANELIST: YOLISA NDZUTA

LAST HEARD: 16 May 2026

DATE of AWARD: 9 June 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to the provision of benefits

SUMMARY: Whether the Respondent has committed an act of unfair labour practice against the Applicant by not converting her from Temporary Teacher into a Permanent Educator post

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS

1. The matter was heard on several days. The proceedings commenced on the 15th of April 2026 and was concluded on the 15th of May 2026.
2. The applicant was represented by Mr G Kotze of Labour Hand whilst the respondent was represented by Ms L Jara.
3. The parties filed substantial bundles of evidence and written submissions too, these will be further addressed later in the award.

THE ISSUES IN DISPUTE

4. I am to determine whether the Respondent had committed an act that constitutes an unfair labour practice as alleged by the Applicant regarding the Applicant’s request to be converted from a temporary teaching post into a permanent educator post.

BACKGROUND

5. In these proceedings the applicants referred a dispute pertaining to the alleged unfair labour practice relating to her request for conversion.
6. The applicant is an employee of the respondent currently serving on a fixed term contract.
7. The applicants’ dispute specifically pertains the vacancy related to the contract she is serving.

SURVEY OF EVIDENCE AND ARGUMENT

8. Seeing that the nature of the dispute herein is one of an alleged unfair labour practice, the applicant bears the onus to prove that same unfair labour practice exists in their dispute in terms of section 186(2) of the Labour Relations Act 66 of 1995. On account of the latter, the Applicant shall lead its case first then the Respondent (employer) shall follow in opposition.
9. The Applicant called two (2) witnesses and filed a bundle enclosing several documents. There was no dispute raised against the contents of the bundle thus same was adopted on the basis that the documents are what they purport to be. The summary of the aforementioned witnesses is enclosed hereinbelow.
10. The applicant testified first in support of her case and her evidence can be summarized as follows:

10.1 She is a temporary teacher who has been serving on fixed term contracts which are issued by the Respondent;

10.2 On the 10th of September 2025 she filed a request to converted from a temporary teacher when she learned that the post she was occupying on a contract had since become vacant owing to the previous incumbent’s retirement.

10.3 She filed her request with the principal who she had expected to further same to the relevant official of the Respondent.

10.4 Unbeknownst to her the principal did not attend to her request for transfer rather when more vacancies became available, other temporary teachers were converted although some were less experienced than her. Owing to the latter, a correspondence was addressed to the chairperson of the SGB seeking assistance.

10.5 Following the latter, another request for conversion was completed and filed with the principal. The latter was then discussed during four meetings (namely on 21 October 2025, 28 October 2025, 30 October 2025 and 11 December 2025) wherein he (Principal Smith) advised that he had not filed the first application for conversion and in same meeting expressed himself in a very harsh way towards her. The latter was in the presence of Ms Tanya Lewis (another educator).

10.6 On 10 December 2025, a correspondence was received from the district advising that the request for conversion was received and was being attended to. Sadly, at the time other temporary teachers were receiving permanent appointment letters. It was only on the 12th of February 2026 that the Respondent ruled on the request for conversion, it (the request) was refused.

10.7 The actions of the Principal and the Respondent affected her emotionally and mentally as she was diagnosed with anxiety and depression by her mental health care practitioner wherein same psychiatrist stated in a report that “Ms. Lewis has been employed at the school for approximately three years. Over the course of treatment, she has presented with the following clinically significant symptoms:
• Persistent anxiety and physiological hyperarousal associated with attending work
• Intrusive thoughts, nightmares, and anticipatory dread
• Emotional overwhelm, tearfulness, and feelings of hopelessness
• Marked fear responses specifically linked to interactions with the principal
• Sleep disturbance, reduced concentration, and impaired daily functioning
• Somatic tension and stress-related physical symptoms

10.8 She was never provided a reason for the delay of the principal nor was she afforded an apology by the principal. She was only afforded a reason by the Respondent’s correspondence of Feb 2026 which effective refused the conversion because the vacant post was suddenly a PL2 (post level 2) and they referred to ELRC Collective Agreement 2 of 2024 to justify the denial.

10.9 The only difference between PL1 (post level 1) and PL2 (post level 2) is the salary.

10.10 Following the refusal, a grievance was lodged and when same was not being attended to, the referral that resulted in the current arbitration proceedings was made.

11. The above witness was subject to cross-examination by the Respondent, and the following was ascertained therefrom:

11.1 The applicant had voiced its dissatisfaction with the treatment and conduct of Principal Smith per its union,

11.2 In her (the applicant’s) understanding she met all the requirements for conversion.

11.3 Mr Mathuphi (the circuit manager) had visited the school to address the applicant complaints. Also, Mr Mathuphi, is the official that signs the letters of HR.

11.4 This applicant testified that he and the other applicants waited for approximately 20 months for the appeal which they consider as unreasonably long and prejudicial.

11.5 When asked about clause 4.2 of the Collective Agreement 4 of 2018 she testified that she met the requirements for conversion in terms of the Collective Agreement nonetheless she was not furnished with the requirements at the time of the conversion.

11.6 When placed that the vacancy she occupies was since reclassified to a PL2 which disqualified it for availability as a vacancy that can accept conversion, she testified that the reclassification was done post her request for conversion.

11.7 She acceded that she knew since 2025 that the vacancy she was occupying could not accept conversion however she testified that she was unfairly denied an opportunity to be converted by the principal.

12. The applicant also called one Ms Tanya Lewis who testified as follows:

12.1 She is an employee of the respondent and is the union rep (NAPTOSA) within the school.

12.2 The applicant had filed a request for conversion which she had assisted in the various follows to Principal Smith, since 21 October 2025.

12.3 During the meeting of 21 October 2025, the principal rudely responded to enquiries of the Applicant which resulted in Principal Smith chasing the applicant out of the meeting venue.

12.4 During the meeting of 28 October 2025 (which was a staff meeting) Principal Smith took issue with applicant and after persistent questions admitted to withholding the applicant’s request deliberately.

12.5 Further meetings were held wherein the applicant’s request was to be discussed and it was only on 11 December 2025 that it was confirmed that the request was before Mr Mathupi.

12.6 She observed how Principal Smith did not support the applicant’s request for conversion and expressed his refusal per his conduct.

13. The above witness was subject to cross-examination by the Respondent, and the following was ascertained therefrom:

13.1 She is aware that the applicant occupies a PL2 post.

13.2 She was unaware of the Respondent’s response to the applicant’s request for conversion dated February 2026.

13.3 She was aware of Mr Mathupi’s visit to the Saul Damons High School (the school).

14. The Respondent called two (2) witnesses, namely Mr Petrus Smith and Mr Bernadus Mathupi. The Respondent also filed a bundle enclosing several documents. Considering the condition adopted in lieu of the applicant’s bundle the same basis was adopted regarding the bundle of the Respondent. The summary of the aforementioned witnesses is enclosed hereinbelow.
15. Mr Petrus Smith testified as follows:

15.1 He is the principal of Saul Damons High School.

15.2 He is aware that the applicant had attempted to be converted from Temporary Teacher to a permanently employed educator.

15.3 He was aware that the applicant was serving as a temporary teacher on a fixed term contract.

15.4 A temporary educator normally cannot be converted unless the vacancy they are occupying is vacant then the requirements of Collective Agreement 4 of 2018 are considered.

15.5 He received a request for conversion from the Applicant and had submitted same.

15.6 He was unaware of the outcome of the Applicant’s request for conversion and only learned about same during the arbitration.

15.7 To his understanding, the applicant’s request for conversion would fail because the vacancy she is occupying is a PL2 which means the post must be filled using normal recruitment processes.

16. The latter witness was subjected to cross examination, and the following can be procured therefrom:

16.1 As the Principal of Saul Damons High School, it was his duty to ensure that all requests for conversion are filed with the Department of Education.

16.2 When asked about the applicant’s first request for conversion, he evaded the question and finally responded that he can’t recall whether he submitted it or had delegated its submission to someone else.

16.3 He conceded that the applicant like all other teachers who filed requests for conversion enjoyed a right to know what the outcome of same request was.

16.4 He conceded that according to the fixed term contracts presented to the Applicant, the vacancy she is occupying is a PL1 and has been for the past few years. The latter post was referred to as PL2 though in the letter of rejection which was the reason afforded by the Respondent. He conceded that the reclassification of the post occurred at a time that he could not recall.

16.5 When asked about the Applicant’s compliance with the requirements for conversion, he disagreed with same.

16.6 When it was put to him that his testimony about the Applicant having an attitude that rendered her difficult to work with and incompatible was without basis, he refused the answer save to state that although he cannot prove the latter, he stood by his testimony.

16.7 When it was put to him that his treatment of the Applicant caused great emotional and mental distress, he stated that he was uncomfortable to respond to such.

16.8 He concededthat many educators with less experience than the Applicant were converted from temporary teacher to permanently employed educator and that he assisted in submitting their requests although some followed the Applicant’s initial request for conversion.

17. The Respondent also called Mr Bernadus Mathupi as a witness, the summary of his evidence is herein below.
    17.1 He is the Assistant Director of Human Resources and Development within the Respondent.
    17.2 He testified that it is the responsibility of a school Principal to file an educator’s request for conversion thereafter the application is considered in terms of the Collective Agreement and in terms of the school’s needs. In this case Principal Smith must have filed the request to the circuit manager hence the response letter of February 2026.

17.3 After receipt of the Applicant’s request and during same request’s consideration it was found that the vacancy she occupies (as a temporary teacher) is not a PL1 post which then disqualifies it (the vacancy) from conversion as it must be filled per the recruitment provisions.

17.4 He testified that the PL classification of the post does not mean that the Applicant is entitled to an increase. The applicant is serving on a fixed term contract with specific appointment stipulations that cannot be altered after the fact.

18. The latter witness was subjected to cross examination, and the following can be procured therefrom:
    18.1 The Applicant does not meet all of the requirements for conversion.

18.2 He received the Applicant’s request for conversion in 2025.

18.3 There was a difference between the Applicant’s appointment and the post which she was placed in. The Applicant is appointed as a PL1 while the post she was placed in is a PL2.

18.4 The incumbent who occupied the post prior to the Applicant’s most recent appointment (on fixed term contract) had resigned.

18.5 There was an investigation conducted which included a visit of the school.

19. At the conclusion of the witness testimony, the parties were directed to file submissions in support of their respective arguments, same submissions were filed with the employer’s closing submissions being filed on 26 May 2026. I shall hereinunder place an analysis of testimony and shall also reflect on the aforementioned submissions.

ANALYSIS OF THE SUBMISSIONS

20. As stated above, the parties filed written submissions in support of their respective cases.
21. The Applicant referred an unfair labour practice as per section 186 (2)(b) of the LRA in relation to the Respondent’s refusal to convert her (the applicant) from a temporary teach to a permanently employed educator.
22. The Applicant argued that the employer committed an act of unfair labour practice in that firstly her initial request for conversion was deliberately withheld by a representative of the Respondent (Principal Smith) and secondly because an expectation for conversion was created. The Applicant also argued that the Applicant was the victim of differentiation considering that Principal Smith ensured that many other temporary teacher’s in similar situations as her were ultimately converted although they enjoyed less experience as her. The latter was argued as a furtherance of the many administrative errors which plagued the Respondent and ought to have been presented during arbitration in the report that was not filed.
23. In her heads of argument, save for challenging the credibility of the respondents’ witnesses, the Applicant argues that Respondent acted unfairly both procedurally (per the conduct of the principal) and substantively (absence of justification for differential treatment).
24. Secondly the Applicant argues that the conduct of Principal Smith affected the Applicant which was reported by a mental health care practitioner.
25. The Applicant argued that central to her dispute is the Respondent’s failure to complying with the rules of fairness and relied on Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 (A), emphasising the argument that the Appellate Division confirmed clearly that where representations or conduct create a legitimate expectation of a benefit, procedural fairness requires that the affected party be heard before that benefit is withheld or refused.
26. The Respondent argues on the other hand that the Applicant has failed to prove that the Department acted unfairly or unlawfully in not converting Ms Wilma Lewis to a permanent position.
27. The Respondent argued that Applicant did not meet the requirements for conversion in terms of the applicable ELRC Collective Agreement and departmental policies.
28. The Respondent emphasised that mere submission of conversion documents does not create an automatic right to permanent appointment. The Department still retains the discretion and responsibility to verify whether the educator complies with all prescribed requirements before approval can be granted.
29. The Respondent argued that the school staff establishment differentiates between substantive PL1 posts and promotional posts such as Departmental Head posts. Even where a promotional post becomes vacant due to retirement or exit of the incumbent, the school may temporarily utilise a PL1 educator to fill operational needs without that educator occupying the substantive promotional post. The Respondent relies on the principle established in labour law that an employee can only claim a right or legitimate expectation where the requirements of the applicable policy or collective agreement have been satisfied. In this matter, the Applicant failed to prove compliance with the essential jurisdictional requirements for conversion.
30. The above submissions were considered in terms of the applicable law hereinbelow.

APPLICATION OF LAW TO THE SUBMISSIONS

31. A dispute wherein an applicant alleges unfair labour practice departs from section 186 (2)(b) of the LRA once some form of unfair labour practice alleged is identified. It is worth emphasising that “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
    unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
32. The long and short of the Applicant’s dispute pertains to the conduct of the employer vis a vis an expectation or norm which one must consider if same exists in law or practice.
33. The Applicant argued that her observation and experience with Principal Smith is the root cause of the dispute thereafter she argued that given that other educators whom she argued (without opposition) were less qualified as her were converted then solidified her dispute.
34. I must emphasised that the applicant’s dispute is reliant on Collective Agreement 2 of 2024 which specifies the requirements for a temporary teacher to be converted. Therefore in addressing the Applicant’s dispute in relating to the statute applicable, one must bear in mind the dictum of KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) wherein the court reiterated that the interpretation of regulatory text requires a consideration of the full document to understand the context and purpose of the regulatory text.
35. The argument relating to Principal Smith’s mishandling of the Applicant’s request for conversion is what inspired the dispute as it reflects the unfair conduct which the Applicant relies on to establish her case.
36. The Applicant argued that the latter two are interrelated which I find difficulty in as the unfairness of the principal is an action different and not directly resultant on her disqualification from being converted into the post she seeks to occupy. She too conceded that the post being classified as PL2. Thus upon an application of the clause 4 of the Collective Agreement to her request, she cannot be converted into the post she seeks to occupy. What the latter means is that unless there was a vacant and substantive post of PL1 that she sought to be converted to, her request could not legally be implemented.
37. The Applicant argued that the Principal’s conduct and ill-treatment was grossly unfair and that is true however same does not entitle her to the specific relief sought within this arbitration as was emphasised in Reeflords Property Development (Pty) Ltd v De Almeida [2022] 6 BLLR 530 (LAC). There must exist a nexus between the unfairness claimed and the relief sought. The fundamental principle is that the unfairness triggers the legal remedy if same legal remedy is entitlement that exists. In establishing the nexus between substantive and procedural unfairness together with a claim for conversion means that the applicant must have satisfied the requirements necessarily entitling them to be converted. Sadly the Applicants case fails to establish the latter owing to the statutory requirements associated with conversion. Understandably in terms of section 193(4) of the labour relations act a commissioner may in unfair labour disputes issue an award which includes a corrective action however same must be within the confides of law and what is sought by applicant. The Applicant in this matter referred a dispute alleging unfairness relating to conversion and she established the unfairness of the conduct by an official of the respondent however same unfairness did not relate to an aspect identified within section 186(2) of the labour relations act as it did not pertain to a benefit , promotion , demotion , training or suspension.
38. It is evident that the matter before me was not one a dispute regarding discrimination rather one of an unfair labour practice. Also the unfair labour practice argued related to the conduct and mishandling of a request for conversion. Which as stated above was established from that perspective however when considered in terms of the compliance of the applicant’s request with the Collective Agreement, there wasn’t any unfairness.
39. In the premise of the above I make the following award.

AWARD

40. The Applicant has not adduced its duty to prove that an unfair labour practice was committed by the Respondent relating to her request to be converted as she did not meet the requirements of the Collective Agreement 2 of 2024.
41. The Applicant is not entitled to the relief sought.

Yolisa Ndzuta
Panellist: ELRC