IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY
Case No. ELRC1404-24/25 WC

In the matter between:

NATU obo MADLAVU AND ANOTHER Applicant

and

EDUCATION DEPARTMENT OF WESTERN CAPE Respondent

PANELLIST: YOLISA NDZUTA

LAST HEARD: 9 SEPTEMBER 2025

DATE OF AWARD: 08 October 2025

SUMMARY: Whether the Respondent perpetrated conduct that constitutes an error in the interpretation and application of a Collective Agreement 4 of 2016 in its identification of excess educators.

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down for arbitration heard before me on several dates and was concluded on the 9th of September 2025. During these proceedings, the Applicants, Sindiswa Madlavu & Simphe Spence were represented by Mr. Shikwana of the National Teachers Union (NATU) while the Respondent, Western Cape Department of Education was represented by Mr Tebogo Seelamo.
2. The parties confirmed receipt of the notice of set down for each hearing date.

THE ISSUE IN DISPUTE

3. I am required to determine whether the Respondent had erred in its interpretation and application of a collective agreement namely in relating to the Applicants’ being declared as excess educators.

THE BACKGROUND TO THE DISPUTE

4. The Applicants referred a dispute owing to a process undertaken wherein they were declared as excess educators, and they deemed the process as unfair and a breach of the prescripts of Collective Agreement 4 of 2016.
5. The Respondent challenged the above and maintained that there was consistent compliance with the Collective Agreement 4 of 2016, rather it was the Applicants’ own understanding that was the cause of the dispute. The Applicants were called to prove their case.
6. The parties concluded a Pre-Arbitration minute to narrow down the issues, same minute was enclosed on the common bundle. Furthermore, due to a dispute regarding a document within the common bundle it was sought that a recording of a meeting be admitted. The latter shall be addressed herein below.
7. I shall hereinbelow summaries the respective parties’ cases and the viva voce evidence tendered. It is emphasised that these are summaries of the various witnesses.

SURVEY OF EVIDENCE AND ARGUMENT

8. The Applicants both testified in support of their respective cases while the Respondent called one (1) witness to testify in support of its case. I have hereinbelow summarised the viva voce evidence (testimony) of the proceedings. This summary should not be considered as the transcript of the testimony and proceedings. Further to the viva voce evidence that was tendered. The respective parties filed closing submissions which the last filing was on the 19th of September 2025.

Applicant’s Case

9. Ms Siphe Spence testified as follows:

9.1 She is an educator appointed by the Respondent and is currently exercising her duties at Nomlinganiselo Primary School.

9.2 She currently holds a Bachelor of Education (BEd) qualification and enjoys 8 years of experience as a qualified educator.

9.3 Her dispute relates to being declared as an excess (surplus) educator following a process that was undertaken by the then principal of Nomlinganiselo Primary School. The then principal (Mr Mzinda) undertook his process by calling a staff meeting and advised that five (5) educators had been declared as excess which he had identified and would be discussing same process with.

9.4 The deputy principal (Mrs Skhosana) at the first staff meeting -regarding excess educators- asked Mr Mzinda for the criteria which was not furnished rather a promise of same to follow. At the second staff meeting regarding excess educators- Mr Mzinda then advised of the criteria and placed emphasis on the experience as a qualified educator following his research and discussions with the circuit manager.

9.5 At no stage in time did she receive any written information regarding the educator post establishment or anything that informed the decision of herself being declared as access educator.

9.6 Her opinion was that the needs of the learners including the number of classes were not considered in the decision made nor was she as an affected learner advised.

9.7 She was not furnished with a list of vacancies in compliance with B6.5.3 of the Collective Agreement.

9.8 If the school was to apply LIFO as the last resort per the directions of the Collective Agreement, she would not have been declared as excess.

10. The above testimony was challenged per cross-examination to which the following was uncovered:

The Respondents’ Case:

10.1 Ms Spence expected to be furnished with the school’s PPN and other documentation that informed Mr Mzinda’s decision to declare her an excess educator.

10.2 Ms Spence did not enjoy a learned understanding of the collective agreement however understood the process in that the requisite information was not furnished to the educators when the decision was made.

10.3 Ms Spence maintained that Mr Mzinda did not explain the process as directed by the Collective Agreement.

10.4 Ms Spence had not received the applicable educator post establishment that resulted in her being declared as excess until the arbitration hearing. Ms Spence emphasised that this is one of the documents that Mrs Skhosana (the Deputy Principal) requested.

10.5 There are educators who enjoyed less experience than the applicants who were not declared as excess owing to some only receiving their tertiary education qualification after the applicants.

10.6 Ms Spence did not know the experience enjoyed by the educators with whom she compared herself.

10.7 Ms Spence did not express her dissatisfaction during the meeting-regarding excess educators- as permitted by the collective Agreement however testified that other educators did express their dissatisfaction.

10.8 Ms Spence confirmed that during the second staff meeting- regarding excess educators- there were hand-outs given by Mr Mzinda.

10.9 According to Ms Spence, qualification was a more important criteria than experience however the principal did not consider qualification thus did not comply with B.6.4.1 of Collective Agreement. Also, the principal erroneously took into account pre-qualification teaching (assisting) as experience.

10.10 Ms Spence testified that during the principal’s latter discussion with her (in his office) she felt intimidated because the principal was more assertive about the decision taken however, she did not report this.

10.11 Ms Spence testified that Mr Mzinda did not produce the school’s PPN during any of the meetings although it was requested.

10.12 Ms Spence confirmed that although she was declared as an excess educator at Nomlinganiselo Primary School, at the time of the arbitration she was still teaching at Nomlinganiselo Primary School, however she felt prejudiced by the actions of the principal because she may be transferred to another school also her experience following the actions of Mr Mzinda.

11. Mrs Sindiswa Madlavu testified as follows on behalf of the Applicants:

11.1 She was appointed as an educator by the employer/ respondent in 2018 in a Foundation Phase vacancy.
11.2 She referred a dispute following being declared as an excess educator by the then principal (Mr Mzinda).

11.3 Her recollection is that Mr Mzinda called a meeting and at the same meeting, advised that there were educators who had been identified as excess as such to reduce the number of educators, the excess educators would be transferred (re-deployed) to other schools.

11.4 According to her understanding, the principal did not comply with the Collective Agreement in his implementation of his decision as communicated in the afore explained meeting. For example the principal was required to provide information and documentation which did not happen.

11.5 When she enquired about how she was identified by the principal, she was advised that she was one of the educators with the least experience.

11.6 She was expecting that the principal would consider qualification as the determination of experience and that when qualifications were equal amongst the various educators affected will LIFO (last in first out) apply. Mr Mzinda approached it differently and deferred from the Collective Agreement.

11.7 She was certain that she was qualified as an educator earlier than Ms Sindiswa Nogemane also during the meeting with the principal, the criteria was sought but that was not forthcoming although the principal’s repetitive referral to curriculum needs there wasn’t any information or documentation to support his assertion. The other educator comparators are currently less qualified as they hold diplomas whilst the Applicants hold degrees.

11.8 The application of LIFO was not correctly implemented and the principal’s process was non-compliant with the Collective Agreement.

11.9 She was seeking that the process undertaken by Mr Mzinda be set aside as a relief.

12. The latter testimony was subject to cross examination and the following was learned from there:

12.1 The principal did not explain the staff establishment nor did he furnish documents advising how the decision was taken to declare the Applicants as excess educators. Similarly the principal did not convene a consultative meeting rather he elected to inform the staff of the decision and the affected educators.

12.2 There was an expectation of the meeting to be consultative dialogue with information as opposed to how Mr Mzinda followed.
12.3 She learned about the requirements of the Collective Agreement during the second meeting when Mrs Skhosana made her presentation hence the argument that Mr Mzinda’s action was not compliant with the Collective Agreement.

12.4 The principal did eventually give reasons to the Applicants for the decision.

12.5 When referred to clause B 6.4.2.4 of the Collective Agreement and asked about the application of LIFO, she testified that experience is applied after consideration of qualification. She also testified that the principal ought to have considered the educational needs of the children in terms of the Collective Agreement.

12.6 When referred to the reporting of the respective staff experience (as per the CEMIS System), Ms Madlavu testified that the Collective Agreement referred more to years as a qualified educator and the report referred to is incorrect. She maintained that her experience was more than the comparator educators because the comparators were qualified more recently than her.

12.7 It was put to her that given how the comparator educators’ enjoyed more experience, then the decision of Mr Mzinda was justified and compliant with the Collective Agreement, Ms Madlavu responded by referring to Mr Mzinda failing to explain the process.

12.8 When asked how did she expect Mr Mzinda (the principal) to explain the process, she testified that she expected the principal to furnish all educators with the necessary information before making the decision, then call the affected educators to explain to them the criteria including the curriculum needs. She also testified that her opinion was that the principal acted on his own accord.

12.9 When referred to the minutes of the meetings, she disputed the accuracy thereof.

12.10 When asked about the school’s report regarding educator experience, she disputed it and its accuracy as it ought only to consider experience as a qualified educator.

12.11 When it was put to her that the educational and curriculum needs we met when the comparator educators were retained and not declared as excess educators, she disputed that and maintained that considering she was qualified before one of the comparators the process & decision was tainted.

12.12 When referred to the staff establishment and the PPN, she testified that it was only at the dispute that she learned of the documents.

12.13 When referred to clause B.6.5.1 of the Collective Agreement which reads “In terms of section 6 and/or section 8 of the Employment of Educators Act, (1998) the employer may transfer an educator who is in addition to another post in the department that matches his/her skills and experience.” She testified that although such prerogative exists, the decision to transfer must be informed and there should be a procedure to follow.

12.14 When asked about how the action of the employer prejudiced her, she testified that she may be transferred to a school far from her current home therefore she will incur travel costs. She also testified that her dispute was regarding the compliance with the process and the lack of transparency by the process undertaken by Mr Mzinda.

13. Mr Likhaya Lumkwana was also called to testify as a witness for the Applicants. He provided as follows:
    13.1 He is a post level 1 educator at Nomlinganiselo Primary School teaching Intermediate Phase.
    13.2 He was not part of the first meeting wherein excess was declared. He was informed by colleagues about what unfolded at the meeting. At the second meeting, Mr Mzinda confessed that he doesn’t know how to implement the process of declaring excess as such he confirmed that he would seek advice.
    13.3 After obtaining advice, Mr Mzinda returned with a list of five (5) educators which included Ms Ponono and himself (Mr Lumkwana) in a private meeting wherein he directed that the five (5) were identified as excess educators.

13.4 Having been disputed the decision, he queried the decision to the circuit manager thereafter following a meeting, the dispute was resolved. During the meeting with the circuit manager, Mr Mzinda was asked whether he used the data and information given to identify that excess educators to which he responded that he did not. Given the latter and further engagements (before a panel), Mr Mzinda then held a further meeting wherein the list of identified educators changed to exclude him (Mr Lumkwana) & Ms Ponono.

13.5 Mr Mzinda was directed by the circuit managers and the panel to redo the process properly however on consideration of his conduct, he did not consider that the Applicants were affected by his conduct which was already criticised by the circuit manager and panel.

13.6 He had also enquired from other colleagues in other schools about the process and found that Mr Mzinda’s chosen process was completely different from what is expected and directed on the Collective Agreement. Example during the meetings there wasn’t a PPN certificate or staff establishment presented.

13.7 He uncovered from Mr Mzinda’s conduct that he did not know how to conduct the process because he (Mr Mzinda) even failed to properly identify which phase was losing learners to justify the new staff establishment that would have informed the process.

14. Mr Lumkwana was subjected to cross examination and the following was learned therein:
    14.1 When referred to clause B.6.3 of the Collective Agreement which reads “Each principal must inform his/her staff of the institution’s new educator post establishment and of the procedure, as set out in the next paragraph, that will be followed in identifying educators who cannot be accommodated on the new establishment. This information must be accessible to all members of staff.”, he testified that Mr Mzinda did not comply as he did not inform of the educator post establishment nor did he provide the information.

14.2 Although he (Mr Lumkwana) was absent during the first meeting, he learned from the colleagues what occurred and it repeated in his presence during the second meeting hence when questioned, Mr Mzinda said he would obtain guidance and direction via research and enquiring from the circuit manager.
14.3 In the second meeting, Mr Mzinda did communicate the purpose of the meeting however his process was to isolate educators whom he did not like considering that he first identified him (Mr Lumkwana & Ms Ponono) thereafter the dispute that was addressed by the circuit manager and the panel, he directed his attention to the Applicants.

14.4 When referred to the minutes of the meeting of the 10th of September 2024, he disputed the veracity of the minutes. He testified that an example is that the minutes misguided on what happened insofar as Mrs Skhosana was concerned.

14.5 When asked why he testified that other educators (comparators) were not as qualified as the Applicants, he testified that he knew for a fact that one of the educators who was not identified as excess only acquired her tertiary qualification more recently, which was ignored by Mr Mzinda.

14.6 When asked what he considered as more important between experience and qualification, and put to him that the data presented was drawn from the CEMIS system, he disputed that because it did not consider experience from date of qualification as some had been assistants before qualification therefore they shouldn’t be considered.

15 Further to the latter, the Applicant filed written submissions with the last submission being filed on the 19th of September 2025 which same shall be referred to in the analysis hereinbelow.

16 The Respondent relied on the testimony of Mr Robert Mzinda who testified as follows:

16.1 He was the principal of Nomlinganiselo Primary School from 2009. He enjoys over thirty (30) years of experience in basic education.

16.2 He conducted the process of declaring the applicants as two of five educators who were excess (in surplus) following the staff establishment that was given to him as per Collective Agreement 4 of 2016 . The staff establishment was informed by the curriculum needs of the school and the enrolment of learners among other things.

16.3 In applying the Collective Agreement, the process was conducted as follows:

(i) After receiving the staff establishment, he called a staff meeting on 6 September 2024 to inform the educators and present new PPN;
(ii) Advised educators that the new staff establishment advised that there were five (5) educators in excess therefore a process would be conducted to identify the excess educators following a criteria;
(iii) Called a later meeting on 10 September 2024, and the process was explained again to the staff. Following the assessment, the foundation phase was identified as the area with excess educators thereafter the criteria was applied. This can be confirmed by the minutes of each meeting. There were registers of staff present in the meetings.

16.4 The school’s staff establishment was produced by the employer based on the leaner enrolment which informed the curriculum needs. The staff establishment is determined in August annually and it influences the staffing for the following year.

16.5 During the meeting of the 10th of September 2024, there were fears from educators therefore he directed educators to be assured that the process undertaken would be compliant with the Collective Agreement, this was confirmed by guidance of the circuit manager. Following the directions from the circuit manager, he (Mr Mzinda) received information to advise of the process and criteria. It was then explained to staff that after application of the criteria, he would have to apply LIFO as per the Collective Agreement.

16.6 The criteria and information was shared with staff.

16.7 Understanding the applicant’s case, something that must be considered is how their phase was identified first. Given the enrolments of 2024 it was learned that:

(i) There were three classes in the foundation phase and the incoming (2025) projected enrolments raised an issue;
(ii) The total number of grade 1 learners was 127 which was comprised of three classes having 37, 37 and 38 learners each respectively.
(iii) The total number of grade 2 learners therefore projected for 2025 was as per the latter.
(iv) The above raised concerns insofar as the school’s curricular needs.

16.8 Following the latter, the criteria was applied and the Applicants were identified. Also it was advised to the applicants that even though they are identified as excess the Collective Agreement does make provision for their absorption later upon there being a change in the school’s staff establishment.
16.9 The circuit manager was aware and involved in the process as such the Applicants referred a grievance following being identified as excess which then later became the dispute before the honourable council.

16.10 To his knowledge the Applicants are still employed and are working within the same school.

16.11 The Applicants’ identification was not malicious as following the application of criteria an assessment of the experience which focussed on recognised continuous experience within the education section.

17. The above testimony was subjected to cross examination and the following was learned therefrom.

17.1 Mr Mzinda followed the process being guided by the Collective Agreement 4 of 2016 and his approach was not to provide information as in the first meeting only a briefing was provided then after several engagements about the specifics the information and documentation was provided.

17.2 Mr Mzinda confirmed that initially the educators identified were from the Intermediate phase and deliberately excluded the Foundation phase, however following the dispute of Mr Lumkwana, the Foundation phase was included in the educators prospectively to be declared as excess.

17.3 The initial decision was based on the guidance of the district’s circuit manager.

17.4 Mr Mzinda made a mistake in the initial process which affected Mr Lumkwana which he attributed to the guidance of the circuit manager and the other attendees of the meeting with the inspectors.

17.5 Mrs Skhosana was not interrupted and her role in the meetings was to explain the process. It is disputed that there was difference between the address of both Mr Mzinda and Mrs Skhosana.

17.6 The failure to follow what Mrs Skhosana (the Deputy principal) then the situation of having two processes would not have occurred.

17.7 As the headmaster of the institution, the law was upheld and implemented.

17.8 The PGCE is a post graduate qualification that follows having received an undergraduate qualification relevant to education. An educator with such must be placed in the correct phase.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. The Applicants referred a dispute which relates to the interpretation and or application of the Collective Agreement which entails the assessment of the conduct of the Respondent in compliance with the Collective Agreement.
19. I considered the parties’ respective cases and evidence from the latter perspective; it is therefore my task to evaluate the Applicants’ dispute in that regard.
20. As established in case law, in such disputes the Applicants bear the onus of proof.
21. At the crux of the Applicants’ dispute is the allegation that the then principal (Mr Mzinda) undertook a process that not only deferred from the Collective Agreement, but it transgressed same Collective Agreement.
22. In argument (per submissions) the Applicants submitted that the foundation of their case is the process implemented by Mr Mzinda and subsequently authorised by the circuit manager. The argued that they were unfairly and erroneously declared as excess educators. Both Applicants argued that the principal failed to consider the curriculum needs of the school.
23. In argument, the Applicants also submitted that the process within the Collective Agreement requires fairness and transparency which was not complied with by the principal as the administrator, as he failed to present documents including the criteria which was key in the processes which constituted a breach of the educators’ rights per the clause B6.3 and B 6.5.3 of PAM.
24. The Applicants also argued that the principal may have testified to know the process however he did commit an error initially with Mr Lumkwana which ought to be considered. Also the principal claimed to have been guided by the circuit manager who according to Mr Lumkwana had chastised the principal during their hearing.
25. In argument, the Respondent submitted that Applicants’ case was dependant and ought to be assessed from the perspective of their evidence. Furthermore the Respondent identified that the Applicants’ gripe was not non-compliance with the Collective Agreement rather, it was their identification as excess educators.
26. The Respondent further argued that the Applicants’ identification was justified as they were ineligible for the posts. It was argued that the Applicants were attendees of the meetings wherein the purpose thereof was conveyed as such. They were informed in compliance with the Collective Agreement thus their claim of not being informed is implausible.
27. The Respondent argued that the Applicants and their witness contradicted each other and at times denied evidence without justification of providing an alternative to the denial. It was argued that the Applicants’ case was predicted on their expectations and perception. On the other hand, the Respondent argued that its witness’s testimony was credible and remained undisputed by the Applicants. The Respondent submitted that the Applicants’ misinterpreted experience in the context of the Collective Agreement as its witness provided a thorough explanation of what constituted as experience.
28. Firstly, on examining the various witnesses one can determine that certain aspects were conveyed without contradiction as such they were credible witnesses therein. Where there were problems is wherein certain aspects contradicted. The Applicants testimony (together with that of Mr Lumwkana) complimented each other insofar as their expectation of process in terms of the Collective Agreement and how it was administered by Mr Mzinda. The issue is pertaining to being furnished with information as Mr Mzinda also testified that in the first meeting he briefed staff and only provided information on the second meeting whereas the Applicants and Mr Lumkwana testified that the information was not forthcoming although the process was being administered and the decision was ultimately made.
29. It is not disputed that the Applicants enjoy the right to have full knowledge and to be furnished with the information necessarily considered during the process. Evidently from the testimony, the latter was in dispute, and the Respondent unfortunately save for what Mr Mzinda testified (and what was challenged) cannot prove such. On assessment of the core dispute the Applicants were credible witnesses. Also, on an analysis of the comparison between the Applicants and their respective comparators it is evident that there remains a crucial dispute about experience, which same service is resolved in clause B6.4.2.4 which advises:
    “If a decision has to be taken regarding two or more educators competing for the same post, the principle of “last in, first out” (LIFO) shall be applied. An educator’s service period for the application of LIFO shall Include all continuous service rendered at any public education institution.
    One representative per trade union party to the ELRC shall be invited by the District/Circuit Manager to observe the process.”
30. Firstly, continuous service is not codified to only mean service as a qualified educator therefore the question is whether the Applicants in comparators enjoyed a longer period of service recognized by the Respondent. As testified by Mr Mzinda and per the records, they did not. Therefore, if B6.4 was applied properly the Applicants’ identification was justified. However, the effect of addressing the latter is putting the horse before the cart and conflating issues because at the heart of this dispute is the compliance (or lack thereof) of the Respondent with Collective Agreement considering that the process was undertaken with the educators not been furnished with the relevant information as directed within the Collective Agreement.
31. The breach of the Applicants’ rights as afforded in the Collective Agreement establishes that the conduct in transgression of the Collective Agreement constitutes an unfair labour practice. Section 186(2)(a) of the Labour Relations Act, 66 of 1995 defines an unfair labour practice as follows: as any unfair act or omission by an employer relating to an employee’s promotion, demotion, probation, training, or the provision of benefits. In the matter of Education Labour Relations Council v Department Education: Gauteng and Others (JA72/2022) [2024] ZALAC 27; [2024] 9 BLLR 912 (LAC); (2024) 45 ILJ 2511 (LAC) (12 June 2024) the Labour Appeal Court confirmed that a breach of a collective agreement constitutes as an unfair labour practice.
32. The Respondent could not justify is deference from collective agreement, worse off considering the concession that it had committed a similar issue in the matter of Mr Lumkwana.
33. The latter cannot be overlooked as it communicates that the Respondent (per Mr Mzinda’s conduct) commenced the process in a manner that was deviation from the Collective Agreement. In Dell v Seton South Africa (Pty) Ltd and Others (JA 33/09) [2011] ZALAC 6; [2011] 9 BLLR 846 (LAC) the court reiterated that a deviation from a company policy is not an automatic unfair labour practice however it only becomes unfair if the deviation is prejudicial to the employee and lacks good cause.
34. Courts allow for rational deviations if there is a legitimate reason and no employee suffers detriment from the deviation. The Respondent failed to acknowledge that there was a deviation in Mr Mzinda’s implementation of the Collective Agreement, that notwithstanding his own concession thereto. The employer even in argument could not justify the ‘unique’ implementation adopted by Mr Mzinda therefore one can conclude that there is no justification for the deviation.
35. The Applicants have established the existence of an unfair labour practice and have proven that the Respondent did breach the Collective Agreement in its implementation of the process.
36. I therefore make the following award.

AWARD

37. The Applicants have proven that an unfair labour practice was by the Respondent.
38. The decision to declare the Applicants as excess is set aside and the Respondent is directed to commence the process again in compliance with Collective Agreement 4 of 2016 within 30 days of this order.

Yolisa Ndzuta
Panellist: ELRC