13 May 2025 -ELRC 928-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN PARROW (WESTERN CAPE PROVINCE)

Case No ELRC 928-24/25WC

In the matter between

NATU obo RJ BOOYSEN EMPLOYEE

and

WESTERN CAPE DEPARTMENT OF EDUCATION EMPLOYER

ARBITRATOR: Monde Boyce

HEARD: 20 March 2025 and 16 April 2025

CLOSING ARGUMENTS: 29 April 2025

DATE OF AWARD: 13 May 2025

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This Council set the matter for a hearing on 20 March 2025 and on 16 April 2025. The matter initially sat at the Western Cape Education District offices at the Hugo Lamprecht Music Centre in Parrow in Cape Town. It was however agreed that the final arbitration sitting of 16 April 2025 be virtual, and arbitration proceeded virtually on the above-mentioned date. Both parties were in attendance on 20 March 2025 and also made an appearance during the virtual arbitration of 16 April 2025 with Mr S Shakwana from the trade union NATU representing the applicant while Miss L Van der Zandt represented the respondent.

THE ISSUE TO BE DECIDED:

[2] I am required to decide whether the respondent, the Western Cape Education Department, failed to apply or breached the ELRC Resolution 2 of 2024 by not converting the applicant to permanent educator, and I am called upon to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[3] The applicant was employed as an educator at Perseverance Junior Secondary School as a Post Level 1 educator teaching Afrikaans at Grade 8 from January 2024 with her fixed appointment due to end on 31 December 2024. In November 2024, the employer took a decision not to convert the applicant to a permanent educator, and a notice to this effect was issued on 25 November 2024. Aggrieved with that decision, the applicant, through her trade union NATU, referred a dispute in terms of Section 24 of the Labour Relations Act 66 of 1995 as amended (LRA) where she claimed breach or non-compliance with the Collective Agreement 2 of 2024 read with Collective Agreement 4 of 2018, asserting that she should have been converted to be a permanent educator. On the expiry of the 30 days when the dispute ought to have been conciliated, the ELRC issued a certificate of non-resolution entitling the applicant to refer the dispute for arbitration. The Council subsequently set the matter down for arbitration. The applicant seeks to have the respondent declared in breach of the collective agreement and consequently seeks conversion to permanent educator Post Level 1 as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

Employee’s Evidence

[4] Miss Ronel Joleen Booysen testified that she was appointed in January 2024 as an educator post level 1. In December 2023, she saw an advertisement for six post level 1 posts but for different subjects. She applied for the post of an educator post level 1 teaching Afrikaans and Life Orientation. She is qualified to teach Afrikaans and Life Orientation senior phase. She received a nomination for conversion form from the principal of the school during April 2024. The principal made her understand that in order to be permanent, she needed to apply to be converted. She filled in the form and submitted her application to the principal who told her everything was fine and that they will await feedback. She checked every week on the status of her conversion application, and the principal kept telling her that he will advise her when there was a response.

[5] On 18 November 2024 there was a meeting between her, the principal, the circuit manager and three of her colleagues. The circuit manager was shocked that she and her colleagues did not know about outstanding documents. According to the circuit manager, they were not converted because there were outstanding documents. She established that the principal had the correct information, and the circuit manager was shocked that the principal did not have the correct information. She met the requirements for conversion. She had the qualifications for the subjects, she had the SACE certificate, she was a South African citizen. When she applied, she was informed that she was in a vacant, funded and substantive post since it was a new school. She met the requirement as per the collective agreement. She did not understand how she could not have been converted to a permanent post. She believed that she should have been converted.

[6] Mr Emmanuel Mzwandile Khumalo was called as the applicant’s witness. He testified that his responsibility in the chamber for the ELRC is that of Chief Negotiator for CTUT in KwaZulu- Natal. According to his understanding the applicant was supposed to have been converted in terms of the collective agreement 2 of 2024. Once the applicant was employed from 2024, she was eligible to be converted to a permanent post after three months subject to the requirements in terms of the collective agreement being met. As far as the collective agreement is concerned, if the post is vacant, and a substantive post. If the post was new, it meant that the educator qualified for conversion. In a new school it would not be correct for the employer to tell an educator that his or her contract has ended. The educator is hired through a particular establishment as long as the post is vacant. If teachers are declared in excess in terms of collective agreement 4 of 2016, guidance is provided in terms of how additional and excess educators must be dealt with. Where there were additional or excess educators, that needed to be taken to the chamber.

Employer’s Evidence

[7] Mr Farren Duminy was called as the respondent’s first witness and has been a principal at Perseverance Secondary School for five years. He is responsible for the daily management of the school’s affairs. The school has a total of one thousand one hundred leaners and has a staff complement of 35 educators. The applicant, Miss Booysen, was employed at the school and joined the school when it opened in 2021 and taught Afrikaans in Grade 8 and was appointed on a fixed contract that was to commence in January 2024 and end on 31 December 2024. During interviews, all educators employed on these fixed contracts at the school were informed that their contracts would end on 31 December 2024. He could not make any promises to any teacher that they would be made permanent, and teachers could only apply to be converted. There are currently no vacancies at the school. The outcome of the conversion process was that Miss Booysen was not converted. Eleven posts were declared redundant on 31 December 2024. While he would have loved to keep all educators, there were and still are no posts vacant at the school.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[8] The dispute, as already earlier alluded to, was referred in terms of which the applicant asserted that the respondent failed to apply or was in breach of the collective agreement by failing to convert her to a permanent educator. I hasten to mention, at the risk of stating what is already obvious and common knowledge to both parties, that the collective agreement is clear on the process of conversion and sets out requirements for conversion as well as the procedure that must be followed. While the applicant is amongst educators whose contracts were terminated at the school on 31 December 2024, and while other educators, including those whose contracts along with hers, ended on 31 December 2024, the dispute she referred was that of interpretation and application of the collective agreement where she alleged that by not converting her to permanency, the respondent breached the collective agreement.

[9] In support of her contention in the above regard, the applicant argued that she met all the requirements for conversion as set out in the collective agreement. Firstly, the applicant contended that when the post was advertised and when she applied, the post was a vacant and substantive post. Secondly, she contended that the school’s principal, Mr Duminy, told her that the post she was appointed to was vacant and substantive and that she would be converted to being a permanent educator. To the extent that it was the applicant who alleged breach of the collective agreement, it was up to the applicant to discharge the onus in that regard. Having heard and considered evidence and arguments, it is my finding that the applicant dismally failed to discharge the onus.

[10] Firstly, her contention to the effect that the post she occupied was a vacant and substantive post was not proven. The only reference the applicant made in support of this contention was the advertisement of the post which she claimed accord with her assertion that the post was a vacant and substantive post, but she provided no proof to that effect by way of the advertisement she referred to. But even if she did, she would have had another hurdle to surmount, which would be that she needed to prove that she fell into the category of educators under the provisions of clause 4.3 in particular 4.3.1 and 4.3.2 of the collective agreement in relation to her having been a permanent educator who qualified who was in addition of the educator establishment, a first applicant and lastly, that, as a temporary educator, she was not excluded in terms of the provisions of paragraphs 4.3.3 to 4.3.5, and which provisions I do not deem it necessary to repeat to the extent that both parties are well versed with them.

[11] The evidence of Mr Duminy was that the applicant, along with fellow educators who were appointed with her in January 2024, were appointed on a fixed contract of 12 months which was to end on the 31st of December 2024. The applicant was given notice to this effect in September or October 2024. In other words, she knew as early as then that the contract would end on 31 December 2024. Mr Duminy further stated that when the applicant was appointed, the nature of the contract was explained to her and that eleven (11) educators including those appointed with the applicant were subsequently declared redundant. The applicant did not dispute this version. Conversion, in the circumstances, could not have been possible if its implementation would have resulted in staff over-compliment. Mr Duminy also testified that there were no vacant and substantive posts at the school. The applicant did not gainsay this version by way of furnishing proof to the contrary.

[12] On the process that needed to be followed, documentation submitted for consideration by the district office had to be complete. By her own version, the documents submitted to the district were found to be incomplete, an event that led to her application being refused. If, by her own version and at the time her application was considered, incomplete documents were submitted, it follows that the application for conversion would not have been successful, irrespective of the reasons if the district was not aware of such reasons at the time of consideration of her application. In any event having followed the process of submission of applications to the district, the school followed the necessary process and the decision to approve or refuse the application lay with the district. That would have been the case even if the principal, as the applicant alleged, had told her that the post she occupied was vacant and promised her that she would be appointed permanently.

[13] Trite to mention is that where breach of the collective agreement is alleged, it is not enough for such breach to be merely alleged, an applicant needs to prove that such breach indeed occurred. The applicant, in the present case, bore the onus to prove that the breach occurred, something which, as I earlier alluded to, the applicant failed to do. I do not find the respondent to have breached any of the provisions of the collective agreement. Even if I were to accept, as per the argument by the applicant, that the principal submitted the applicant’s application for conversion because he (principal) knew that she was due for conversion, I would still reject that that alone would have caused the applicant to be converted to the complete ignorance of other considerations including the fact that the school did not have vacant and substantive posts and that her application was not complete at the time of consideration of applications by the district. The respondent applied the collective agreement to the extent that the applicant’s application for conversion was considered like all other applications. That her application was rejected on the basis of it being incomplete was a determination that cannot be said to have amounted to breach of the collective agreement.

[14] During the proceedings and in argument, the applicant also made reference to the respondent having breached the collective agreement by not converting her after three months into her appointment. But conversions are not automatic after three months of an educator’s appointment. By the applicant’s own version, the school principal made her understand that, in order to be made permanent, she needed to apply for conversion, and an application for conversion was indeed submitted. Throughout the proceedings, I battled to understand how the respondent could be said to have breached the collective agreement on conversion. The witness the applicant called did not take her case far. The witness was not involved in the conversion application process involving the applicant and set out, in generic terms, the provisions of the collective agreement and the conversion process without specifically addresses the applicant’s conversion process and the circumstances that led to her not being converted. It is my finding that the applicant has failed to make a case for breach of the collective agreement, and her application should accordingly fail.

[15] In the premises, I make the following award:

AWARD

[16] The respondent’s decision not to convert the applicant to a permanent educator did not constitute failure to apply or breach of the Collective Agreement 2 of 2024.

[17] The application is accordingly dismissed, and the Council is directed to close the file.