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14 May 2025 -ELRC573-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC573-24/25WC

In the matter between:

NOZUKO SYBIL MAPISA Applicant

and

EDUCATION DEPARTMENT OF WESTERN CAPE Respondent

PANELLIST: YOLISA NDZUTA

HEARD: 28 MARCH 2025

DATE OF AWARD: 13 May 2025

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

SUMMARY: Whether the Respondent perpetrated conduct that constitutes an unfair labour practice by not converting the Applicant to a permanent post.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

  1. The matter was set down as an arbitration to be heard before me on the 28 March 2025. During these proceedings, the Applicant, NOZUKO SYBIL MAPISA was represented by Mr. Juwa Alexander Dimande of SADTU while the Respondent, WESTERN CAPE DEPARTMENT OF EDUCATION was represented by Mrs Aqeelah Petersen.
  2. The parties confirmed receipt of the notice of set down.

THE ISSUE IN DISPUTE

  1. I am required to determine whether an unfair labour practice was committed by the Respondent relating to the Applicant’s non-conversion into a permanent post.

THE BACKGROUND TO THE DISPUTE

  1. I am required to determine whether an unfair labour practice was committed by the Respondent
    relating to the Applicant’s non-conversion into a permanent post.
  2. The Applicant claimed that she qualified for conversion in terms of Circular 000/2023 and had made an application to be converted to the Respondent however her application was denied.
  3. The Respondent challenged the above.

SURVEY OF EVIDENCE AND ARGUMENT

  1. At the onset of the proceedings, the parties sought that the matter proceed as a stated case as it was claimed that there wasn’t a dispute of fact rather the matter was based on a dispute relating to the interpretation and application of the law. An ex tempore ruling was made in favour of the latter, the parties were directed to file their respective submissions. I have hereinbelow summarised the submissions and this summary should not be considered as the transcript of same. The Applicant filed its stated case on the 7th of April 2025 while the Respondent filed its response on the 16th of April 2025.

Applicant’s Case

  1. Mr Dimande submitted on behalf of the Applicant that:

8.1 Ms Mapisa was appointed to the post on the 1st of February 2016 in the Intermediate Phase, a funded (substantive and vacant) post.

8.2 During her employment, her performance was undoubtedly satisfactory.

8.3 Ms Mapisa has been applying to be converted into a permanent post every year since 2018 until the termination of her services in December 2024. She had communicated her request for conversion to the principal of Kairos Primary School where she was working who unfortunately failed to assist her.

8.4 Given the failure of the principal, she then approached the Respondent through the then Circuit Manager (Mrs Tyandela) who resolved the issue by placing Ms Mapisa in Grade 7. She (Ms Mapisa) then taught in Grade 7 since January 2022 until December 2024 to further explain the latter, in October 2023, she (the Applicant) ought to have been automatically converted into permanency according to Circular 0000/2023 however the principal refused to take her conversion forms on the 12/10/2023 (19 days before closing date) therefore failing to comply with Circular 0000/2023. Given the principal’s refusal, on the 20/10/2023 Ms Mapisa approached the Respondent as her employer to report the matter wherein Mr Phillander (Labour Relations Officer) advised her to lodge a grievance. The Respondent failed to inform the Applicant about the process to be followed when applying for conversion including the use of a link to upload one’s documents. The Respondent’s officials also failed to advise the Applicant to lodge a dispute within 90 days instead, the Respondent as an employer elected to send the Circuit Manager (Mrs Tyandela) to the school a month later (20/11/2023) to resolve the matter, but she could not resolve it.

8.5 After not getting any solution, the Applicant then approached her union who referred a dispute to the honourable council.

8.6 The Applicant is relying on circular 0000/2023 which the Respondent should have knowledge of.
8.7 The Applicant meets the requirements for conversion and the Respondent is in transgression of the circular by its refusal to honour the Applicant’s application to be converted.

The Respondents’ Case:

  1. Mrs Aqeelah Petersen submitted as follows on behalf of the Respondent:

9.1 The Applicant’s case is based on a confusion and misunderstanding of the applicable Collective Agreement and the circular.

9.2 Collective Agreement 4 of 2018 read together with Circular 0006/2019 – Section 6 (b) of the Employment of Educators Act (EEA), 1998 (Act 76 of 1998), makes provision for the conversion of the appointment status of educators from temporary/contract to permanent. A temporary educator is an educator who is currently appointed in an approved substantive vacant Post Level 1 post in a temporary capacity for a closed period. This definition does not apply to educators appointed in vacant substantive promotion posts in an acting capacity, or to substitutes for permanently employed educators who are absent from duty, for whatever reason.

9.3 The Circular referred to by the Applicant does not exist rather a circular similar thereto and which addresses the following was published in October 2023 (thus correlating with the Applicant’s timeline) is Circular 0028/2023 which made provision for the condonation of conversion of appointed post level 1 educators who were on contract basis.

9.4 The latter circular (Circular 0028/2023) was issued due to there being an influx of post level 1 educators who were on a contract basis (approximately 8000 ) and an analysis was conducted confirming that many post level l educators are teaching out of phase and subject.

9.5 The latter circular provides that all post level 1 educators teaching out of phase who were in service 1 October 2023 to be converted. The eligible educators that were teaching out of phase had a duty to access the link and complete the form by 3 November 2023.
9.6 It is noted that the Applicant contends that the Respondent failed to inform her about the link where she could upload her documents and further failed to advise her of the 90 days to lodge a dispute. Fortunately the Applicant belonged to the trade union South African Democratic Teachers’ Union (SADTU) which is well versed and knowledgeable in education labour relations matters. The latter circular expired on 31 December 2023 therefore same circular has lapsed and is no longer in force and effect thus the provisions thereof are unenforceable.

9.7 Recently Circular 0025/2024 was issued which addresses conversions and it can be summarised as:
Conversions The following remain in place: (a) ELRC Collective Agreement 4 of 2018, dated 25 September 2018, on the appointment and conversion of temporary educators to posts on the educator establishment. (b) WCED Circular 0005/2019, dated 05 January 2019, on the permanent appointment of newly qualified educators in terms of section 6(a) of the Employment of Educators Act, 1998 (Act 76 of 1998). (c) WCED Circular 0020/2020, dated 23 July 2020, on the conversion of the employment of PL 1 educators from -temporary to permanent in terms of section 6(b) of the Employment of Educators Act, 1998 (Act 76 of 1998). Only professionally and suitably qualified educators may be considered for conversion from temporary to permanent employment in vacant/funded posts where there is no educator declared as in addition to the educator establishment in terms of ELRC Collective Agreement No. 4 of 2016, dated 23 August 2016.

9.8 The Applicant does not meet the above criteria.

9.9 The Applicant contended that during her contract she had requested to be placed in a grade 7 (senior phase teaching post due to her having taught grade 7 several times whereas she was contracted to teach intermediary phase (grade 4 to 6) that is not possible. It is important to note the applicable circular before October 2023 being 0006/2019 which provided as follows for conversion of employment for post level 1 educators.
The Conversion of the employment of Post Level 1 educators from temporary to permanent in terms of section 6(b) of the Employment of Educators Act, 1998 must satisfy the following criteria in order to be considered for the conversion of his/her temporary/contract status to permanent: a) be professionally qualified for the education profession; b) be suitably qualified to teach the subject and in the phase in which the conversion appointment will be made; c) meet the inherent requirements of the post in which his or her conversion of appointment will be made; and d) be registered with the South African Council for Educators (SACE).

9.10 The Applicant is not suitably qualified to teach in the Senior phase as she does not have an Advance Certificate in Senior Phase Teaching and/or a Post Graduate Certificate in Senior Phase Teaching. Furthermore, the policy on the Minimum Requirements for Teacher Education Qualifications No. 38487 GOVERNMENT GAZETTE, 19 FEBRUARY 2015: directs that Specialist requirements for the Advanced Certificate in Senior Phase Teaching are required. The latter policy provides “There are 96 credits allocated to specialist disciplinary, pedagogical and practical leaming must all be focused on the development of competence to teach one Senior Phase teaching subject. In complex Senior Phase subjects, the subject specialization must involve the study of a range of disciplines at Level 6. A maximum of 24 additional credits, focused on disciplinary subject matter, may be added to the minimum 120 credits allocated to the Advanced Certificate”. The latter is required to ensure sufficient coverage in the case of complex subjects.

9.11 Unfortunately the Applicant does not hold an Advance Certificate in Senior Phase teaching hence she is deemed unqualified for said phase.

9.12 The Applicant holds a Secondary Teaching Diploma and an Advanced Certificate In Education in Professional Education Development which is not enough as when one considers the conversion sought by the Applicant to permanent employment status is specifically for Grade 7 (Senior Phase) level however her qualifications restrict her teaching competencies to Life Orientation and Accounting exclusively.

9.13 It is on the above basis that the Respondent argues that the Applicant is deemed ineligible for conversion to permanent status on the grounds that she is teaching outside her qualified phase and lacks the requisite qualifications to instruct at the Grade 7 (Senior Phase) of primary education.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

  1. The Applicant referred an unfair labour practice dispute which relates to promotion/appointment which is established in law under section 186(2)(a) as:

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) 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;

  1. I considered the parties’ respective case and evidence from the latter perspective. In considering the above, my task is to evaluate whether the Applicant’s dispute pertaining the Respondent’s conduct as constituting an unfair labour practice or not.
  2. As established in case law, in such disputes the Applicant bears the onus to prove the existence of an unfair labour practice thus must in its case establish how the conduct of the employer (Respondent) satisfies the above definition.
  3. At the crux of the Applicant’s dispute is the alleged inaction by the Respondent to her interest in being converted from a temporary teaching post to a permanent post. The alleged inaction is based on the Respondent’s officials having not assisted her and having not guided her insofar as her desired outcome. Juxtaposed to the latter, the Respondent argues that the Applicant ought to have known of the circular and more importantly the requirements applicable for conversion, which she allegedly did not meet.
  4. Promotion as a definition refers to elevation to a higher post which includes carrying a greater authority and status than the current position reference to Jele v Premier of the Province of Kwazulu-Natal & Others (2003) 24 ILJ 1392(LC) is necessary herein.
  5. In argument (per submissions) the Applicant submits that she satisfied the requirements for conversion when one considers that she was teaching in a vacant substantive post and held the qualifications and experience necessary to substantiate the conversion sought. She also submits that the only reason her application for conversion was not submitted timeously is due to the officials of the Respondent having not assisted her or guided her to satisfy the process outlined in the applicable circular.
  6. For the purpose of clarity, it is evident that Circular 0000/2023 which appears in the Applicant’s bundle is the same as Circular 0028/2023 which appears in the Respondent’s bundle therefore we will consider the contents rather than the reference.
  7. A thorough consideration of contents in the circular (regardless of it being Circular 0000/2023 or Circular 0028/2023) provides the process to be undertaken for an educator who desires for such conversion and also there exists a list of requirements for such conversion application to be considered (given that a discretion is applied).
  8. It is not disputed that the Applicant enjoys the necessary experience and was serving on a fixed term contract, it is also evident that the Respondent over and above the latter experience sought to rectify its staffing issues by issuing the aforementioned Circular. The latter Circular however should not be read out of context (by failing to consider it in entirety) as it communicates the full extent of what was obligatory for the conversion to be considered. In KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) 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. In this matter, the Applicant relies on the Circular however only refers to one part of It without giving credence to the entire text which therefore means her reference and basis reliance on it is incomplete and misguided for a lack of a comprehensive understanding.
  9. I now refer to the claim of the Respondent’s inaction as the identified unfair conduct. If we consider the Circular relied on, it had an expiration date and it also placed proviso that an application for conversion must be recommended by the governing body, the principal and the circuit manager. Now in the Applicant’s papers she referred to her application not being attended to by the principal however she is silent on an recommendation from neither the circuit manager and the governing body. More so, he application it seems that same was not procured.
  10. The Applicant therefore did not satisfy the requirements for conversion in terms of the Circular relied upon.
  11. I therefore make the following award:

AWARD

  1. The Applicant, Nozuko Sybil Mapisa, has failed prove that an unfair labour practice was perpetrated against her by the Respondent, the Education Department of Western Cape.
  2. The applicant’s dispute, referred under case reference ELRC573-24/25WC, is dismissed.

Yolisa Ndzuta
Panellist: ELRC