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12 May 2025 -ELRC1296-24/25NW

IN THE EDUCATION LABOUR LABOUR RELATIONS COUNCILS

Case No: ELRC1296-24/25NW

In the Arbitration Proceedings between:

SAOU obo NALIZE BUYS    APPLICANT

And

HOD, DEPARTMENT OF EDUCATION, NORTH WEST PROVINCE     RESPONDENT

PANELIST:                   Ntjatja Klaas Aphane           
HEARD:               14 April  2025
DELIVERED:        12  May 2025
   ARBITRATION AWARD  

Applicant’s representative: Annarike Gray (SAOU Official) Nalize Buys

Respondent’s representative: Masaele Cornelia Cindi (Labour Relations Manager) Department of Education: North West Province

DETAILS OF THE HEARING AND REPRESENTATION

  1. This is the arbitration award in the arbitration proceedings concerning an interpretation and application of a collective agreement relating to the non-conversion from temporary teaching to permanent employment as an educator, and the non-payment of salary dispute between, Nalize Buys, the Applicant and the Department of Education: North West Provincial Government.
  2. The interpretation and application of a collective agreement dispute was referred to the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA). This dispute is non-conversion from temporary educator’s position to permanent educator and non-payment from January 2025 to April 2025. 
  3. The interpretation and application of a collective agreement dispute was scheduled for arbitration process on 14 April 2025.  The arbitration proceedings were held under the auspices of the ELRC in terms of section 186(2)(a) of the LRA.  The arbitration proceeding was held virtually through teams.
  4. The Applicant appeared in person, and she was represented by her SAOU representative, Annarike Gray, whilst the Respondent was present and represented by its employee, Masaele Cornelia Cindi, Labour Relations Manager.
  5. The arbitration award is issued in terms of section 138 (7) of the LRA.
  6. The arbitration proceedings were digitally recorded and handwritten notes were taken.

THE ISSUES TO BE DECIDED

  • I am required to determine whether the Respondent interpreted and applied collective agreement correctly or incorrectly relating to non-conversion of the Applicant from temporary education post to permanent educator role.
  • I must also determine if the Applicant is entitled to any outstanding salary from January 2025 to April 2025.  

 THE BACKGROUND TO THE DISPUTE

  •  The Applicant was an employee of the Respondent, employed on a temporary basis as an Educator at Hoerskool Rustenburg, from January 2022 and thereafter re-appointed continuously until 2024. She was earning a monthly salary of R27 802,00.
  • She is still rendering services as an Educator at the school without remuneration from January 2025 to April 2025.
  • The Applicant is duly registered with SACE and therefore competent to be an Educator.
  • During the 12 January 2024, the school submitted an application to the Respondent to convert the Applicant from temporary Educator to a permanent Educator, and the Respondent failed to respond or give the school and the Applicant a feedback.
  • The Applicant, through her union, SAOU, referred the dispute of interpretation and application of a collective agreement dispute  in relation to non-conversion from temporary Educator to a permanent Educator and non-payment of her monthly salary from January 2025 to April 2025.
  • The dispute was scheduled on line through teams for arbitration process on 14 April 2025 and all parties attended. 
  •  The Applicant’s representative submitted a bundle of documents, bundle, “A”, consisting of pages 1 to 50, whilst the Respondent’s representative did not submit any bundle and it was agreed that the Applicant’s bundle would be common bundle. The signed pre-arbitration minutes are part of the bundle.
  • The parties submitted that there were no witnesses and they intended to argue the respective cases through heads of arguments to be submitted on 22 April 2025.  They duly complied by submitting the heads of arguments to our CMO, who rerouted the same to the Panellist.
  • The relief sought by the Applicant is conversion from temporary Educator to a permanent Educator and payment of her outstanding from January 2025 to April 2025.

THE COMMON CAUSES FACTORS

  1. The parties agreed that the Applicant was appointed as an Educator on a temporary basis from January 2022, and the fixed term employment contract was renewed annually from January 2022 to end 2024. The school submitted an application for the temporary employment contract to be converted to permanent Educator on 12 January 2024, but to date no response was communicated to the school and the Applicant. The Applicant is rendering services at the school without remuneration from January 2025 to April 2025.
  2. The Applicant is registered with SACE as an Educator.

SURVEY OF EVIDENCE

  • I wish to state from the onset, that not all the evidence presented were set out hereunder. Only a summary of the relevant evidence is contained herein.

 THE APPLICANT’S CASE

  • The Applicant’s representative submission was that the Applicant was appointed as an Educator on temporary basis from January 2022 and the employment contract was renewed annually until end 2024.
  • On 12 January 2024, the school submitted an application for the Educator to be converted from temporary to permanent Educator in compliance with the PAM-Personnel Administrative Measure read with the ELRC Collective Agreement of 2 of 2024. The school and the Applicant did not receive a written response or feedback until the date of the arbitration 14 April 2025.
  •  Equally the Applicant is rendering services as an Educator at the school and the Respondent is not paying the Applicant her salary and there is no explanation from the Respondent.

In terms of B.3 of the PAM (Personnel Administrative Measures), more specifically B.3.2.1.3, provides that “Notwithstanding the requirements set out in paragraph B.3.2.1.1 and B.3.2.1.2, a person appointed to anyone of the following posts, is not required to be a qualified educator but must comply with the relevant requirements for appointment as set out in the document “Criteria for the Evaluation and Recognition of Qualifications for Employment in Education”.

  • In essence the Applicant does not have to necessarily had an educational qualification or be a qualified educator but may possess the necessary minimum qualification to be appointed to teacher some subjects.
  • The Applicant’s qualifications are National Diploma in Fine Arts and B Tech in Fine Arts. The Applicant is teaching Design and Visual Arts at Hoerskool Rustenburg.
  • PAMC, clause B.3.2.1.3 (v) provided that any person to be appointed to the list of specified subjects inclusive of Visual Arts is not required to be a qualified teacher but must met the Criteria for the Evaluation and Recognition for Employment in Education. This applies to the Applicant.
  • Equally, clause B.3.2.1.5 of the PAM provided that, “Notwithstanding the requirements set out in paragraph B.3.2.1.1, a person with REQV 11 or 12 and who is already employed as an educator in terms of previous measures that provided for his/her appointment, may retain his/her employment status in terms of the measures that applied when he/she was appointed. (ELRC Resolution 4 of 2001).”

28. PAM, clause B.3.2.1.7 of the PAM provides as well that, “A person who qualifies for appointment in a permanent capacity in terms of paragraphs B.3.2.1.1 to B.3.2.1.8, may also be promoted to an appropriate post on a higher post level.”

29. In terms of the Minimum Requirements for Teacher Qualifications (MRTEQ), it also provides that certain non-professional qualifications are allowed for the purpose of teaching.  MRTEQ then sets out the Diplomas in certain fields of study which are appropriate for this purpose and it includes Fine Art as well as Design.

  • In terms of the ELRC Collective Agreement, more specifically clause 4.2 provides for the eligibility of conversion from temporary to permanent Educator and provides that a temporary Educator may only be appointed permanently to a funded ,substantive and vacant level 1 post at a public school on the approved educator establishment if the educator was appointed on a temporary basis for more than 3 months, in terms of clause 4.2.1.1, the educator qualifies for the position in terms of clause 4.2.1.2, the temporary educator is registered with SACE in terms of clause 4.2.1.3  and that the temporary educator is a citizen or permanent resident of the Republic of South Africa in terms of clause 4.2.1.4.
  • It is the Applicant’s representative that the Applicant met all of the about requirements for eligibilities and therefore was supposed to be converted from temporary to permanent educator, in terms of clause 4.2 of the ELRC Collective Agreement No 2 of 2024.
  • The Applicant is registered with SACE as an Educator, met the requirements of PAM, MRTEQ and clause 4.2 of the ELRC Collective Resolution 2 of 2024 to be converted from temporary to permanent educator and to be paid her salary for rendering services to the Respondent.

THE RESPONDENT’S CASE

  • The Respondent’s representative main submission was that the Applicant is an educator and registered with SACE to teach only performing arts in terms of her registration at SACE.
  • The Hoerskool Rustenburg is a public school offering mandatory subjects such as Afrikaans, English, Life Orientation, Mathematics and Maths literacy and optional subjects are Natural Science, Economic and Management Science, Technology and Arts and Culture.
  • The Arts and Culture subjects are Music, Visual Arts, Dramatic Arts, Dance Studies and Design.
  • An Educator teaching at an ordinary public school, on Post level one is required to teach between 85% – 92% of the scheduled teaching time. In an ordinary public school performing arts is a component of dramatic arts, which is also one element of Arts and Culture.  Therefore, the Applicant would not be a value add to the school in terms on contribution to the teaching at school, because performing arts have four hours per week.
  • The Respondents policy, PAM further indicates the following: –
    • A.4.1.3 provides that, each post level within a school has different duties and responsibilities, encompassing the core duties outlined in paragraph A.4.1.2 above, but to a varying degree.
    • A.4.1.4 provides that there should be an equitable distribution of workload between the various post levels and within a post level to ensure that educators on a particular level or an individual educator is not overburdened. 
    • A.4.1.5 provides that the expectation is that every educator must be able to account for 1800 actual working hours per annum. 
  • It is a PAM requirement in terms of clause B.3.2 that educators needs to possess some necessary qualifications to enable them to teach in a public school.
  • In terms of PAM, clause B.3.2.1.3 provides that notwithstanding the requirements set out in paragraph B.3.2.1.1 and B.3.2.1.2, a person appointed to anyone of the following posts, is not required to be a qualified educator but must comply with the relevant requirements for appointment as set out in the document “Criteria for the Evaluation and Recognition of Qualifications for Employment in Education”.
    • Agricultural Technology 
    • Civil Technology 
    • Computer Applications Technology 
    • Dance Studies 
    • Design (f) Dramatic Arts 
    • Education Psychologists 
    • Electrical Technology    
    • Engineering Graphics and Design 
    • Equine Studies 
    • Hospitality Studies 
    • Information Technology 
    • Maritime Economics 
    • Mechanical Technology 
    • Music 
    • Nautical Science 
    • Occupational Therapists 
    • Psychologists 
    • School Social Workers 
    • Vocational fields in Special Needs Education 
    • Physiotherapists 
    • Speech Therapists 
    • Visual Arts 
  • The Applicant is not professionally qualified to teach and therefore not appointable and not qualified to be converted from temporary to permanent educator.
  • The Applicant would not be a value add to the establishment because she would not meet the expected notional time percentage of post level 1 educator and does not have two (2) teaching subjects as per the requirements of MRTEQ and Criteria for Evaluation and Recognition of Qualifications of Employment in Education.
  • Therefore, the Applicant is not appointable and does not meet the necessary requirements to be appointed as an educator.

ANALYSIS OF EVIDENCE AND ARGUMENTS

  • In considering the merits of this dispute, I had regard to the provisions of the LRA, the ELRC Dispute Resolution Procedures, ELRC Resolution 7 of 1998, ELRC Collective Agreement 4 of 2018, ELRC Collective Resolution 2 of 2024, the Constitution of the Republic of South Africa.
  • Everyone has the right to a fair labour practices. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996. This right is well entrenched by section 185 of the LRA, which provide the right not to be unfairly dismissed or subjected to unfair labour practices.
  • It is common cause that the Applicant was appointed as an educator on a temporary basis, in January 2022 until end 2024. The school submitted an application for conversion of the Applicant from temporary to permanent educator on 12 January 2024 but the Respondent failed to respond or give written feedback to the school and the Applicant.
  •  Upon perusing the file, it was clear that the dispute was referred as the interpretation and application of the collective agreement. The dispute was conciliated as alleged unfair labour practices and the outcome certificate was issued.
  • Upon asking the discrepancies, the Applicant’s representative submitted that they were advised at conciliation by the presiding panellist, that the dispute should be unfair labour practices dispute.
  • In terms of section 186(2) of the LRA, the unfair labour practice means any act or omissions that arises between an employer and an employee involving: –
    • Unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of a benefits to the employee,
    • The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee,
    • A failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement and,
    • An occupational detriment z, other than dismissal in contravention of the Protected Disclosure Act, 2000, on account of the employee having made a protected disclosure in terms of the Act.
  • Therefore, the dispute that relate to conversion from temporary educator to permanent educator does not find application in an alleged unfair labour practice.
  • It is clear that the dispute on the referral form was interpretation and application of a collective agreement, and therefore the mere fact that the conciliation outcome certificate categorize the dispute as alleged unfair labour practice is binding on the arbitration process.
  • In Goldfield Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (No JR 2006/08), the Court held that certificate outcome had no legal significance other than it merely a statement that the dispute referred to conciliation has been conciliated and that it was resolved or remain unresolved following the conciliation.
  • The policy of the Respondent, PAM, clause B.3.2.1.3 (v) provided that any person to be appointed to the list of specified subjects inclusive of Visual Arts is not required to be a qualified teacher but must met the Criteria for the Evaluation and Recognition for Employment in Education. The Applicant’s qualifications are National Diploma in Fine Arts and B Tech in Fine Arts. The Applicant is teaching Design and Visual Arts at Hoerskool Rustenburg.  The Arts and Culture subjects are Music, Visual Arts, Dramatic Arts, Dance Studies and Design.
  • It cannot be correct of the Respondent to submit that the Applicant is not appointable and is not qualified as an educator whilst the same Respondent appointed the Applicant on temporary basis, and fixed terms employment contract was renewed annually until end 2024. The Applicant was equally rendering services to the Respondent from January 2025 to April 2025 without any justifiable causes.
  • It is correct that the SACE registration of the Applicant provided that that the Applicant is registered to teach performing arts and it was submitted that the Applicant is teaching visual arts and design.
  • The Applicant is registered with SACE as an Educator, met the requirements of PAM, MRTEQ and clause 4.2 of the ELRC Collective Resolution 2 of 2024, ELRC Collective Agreement No 4 of 2018, to be converted from temporary to permanent educator and to be paid her salary for rendering services to the Respondent.
  • Therefore, the Respondent failed to interpret and applied Collective Agreement correctly through non-conversion from temporary to permanent educator and non-payment of salary from January 2025 to April 2025. Therefore, the Applicant is entitled to be converted from temporary to permanent educator, effectively January 2025.
  • The Applicant’s salary per month is R27 802,00 and therefore was entitled to her salary for the services rendered, from January 2025 to April 2025 and therefore R27 802,00 times 4 =R111 208,00.
  • It is correct that the SACE registration of the Applicant provided that that the Applicant is registered to teach performing arts and it was submitted that the Applicant is teaching visual arts and design.

AWARD

In the premises, I make the following award:

  • The Applicant, Nalize Buys, has established that the Respondent failed to interpret and applied the Collective Agreement correctly through non-conversion from temporary to permanent educator, effectively January 2025.
  • The Respondent, HOD, Department of Education: North West, is ordered to convert the Applicant from temporary educator to permanent educator.
  • The Respondent, HOD, to pay the Applicant, Nalize Buys, the amount of R111 208,00 (one hundred and even thousand and two hundred and eight rand) being the outstanding salary from January 2025 to April 2025.
  • The payment of the amount referred to in paragraph 52 must be effected by paying the said amount into the Applicants’ bank accounts.
  • The Respondent is ordered to pay the Applicant the amount referred to in paragraph 52 within fourteen days of receipts of this arbitration award but no later than the 25 May 2025.
  • As provided for by section 143(2) of the Labour Relations Act 66 of 1996 as amended, any unpaid amount due in terms of this arbitration award will attract interest at the rate prescribed in terms of section 12 of the Prescribed Rate of Interest Act, Act 55 of 1975, as from the date on which it was due.
  • Should the Respondent fail to comply with the above directive in the arbitration award, the Applicant is to approach the ELRC, Secretary of the Council, for the certification and enforcement of the arbitration award in terms of section 143(3) of the LRA.

Thus, done and signed at Pretoria, dated 12 May 2025.

Signature:
  
ELRC: Panellist:Ntjatja Klaas Aphane