ELRC ARBITRATION
BETWEEN:
SAOU OBO BEZUIDENHOUT “the Applicant”
and
DEPARTMENT OF EDUCATION – NORTHERN CAPE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC669-2021NC

Last date of arbitration: 02/07/2021
Date of award: 15/08/2021
Closing Arguments: 16/07/2020

NOZIPHO B KHUMALO
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The matter was set-down for arbitration in terms of Section 24 of the Labour Relations Act (LRA). The arbitration was held virtually on the 02/07/2021. Ms Marie Mazzoncini an official of SAOU represented the Applicant, while Mr Otsile Pisane appeared for the Respondent.

2. Parties agreed to make written closing submissions.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

3. The Applicant was permanently employed by the Respondent in 2013 at Kevin Nkoane Primary School. In June 2019 he resigned from his permanent post. He was re-employed in the same post by the SGB in July 2019.

4. The SGB, of Kevin Nkoane Primary School applied on various occasions for the Applicant to be converted from a temporary educator to a permanent educator, in accordance to Collective Agreement 4 of 2018.

5. In November 2020 the SGB recommended that the additional post of Ms Smith be declared in excess. The Respondent however declared the post of the Applicant in excess. This led to the Applicant being unemployed since January 2021.

6. The Applicant is currently employed by the SGB on a month to month basis as from the 01 May 2021.

7. The Applicant lodged a dispute for interpretation and application of collective agreements;
Collective agreement 4 of 2018 Sections 4.2, 4.3, 4.4 and 4.5;
Collective Agreement 4 of 2016 Section B6.4.1 and 6.4.2.

8. I am required to determine whether the Applicant meet all the requirements for conversion and whether the Respondent failed to comply with the provisions of the Collective Agreement 4 of 2016 and Collective Agreement 4 of 2018.

9. I am also required to, based on the finding on the foregoing issues in dispute; determine any relief, if applicable to the Applicant. The Applicant seeks to be converted from temporary educator to permanent educator post as from July 2019.

SUMMARY OF EVIDENCE AND ARGUMENT

Applicant’s case

10. The Applicant’s cause of disagreement is firstly that he met the post profile for conversion. He was re-employed in the same position that he held prior to his resignation which is confirmation that he met the post profile. The fact that the applicant has been appointed continuously on a temporary basis since July 2019 is also an indication that the employer considers him to meet the requirements for appointment as an educator in terms of the Personnel Administrative Measures (PAM) document and the Collective Agreement.

11. Secondly that the SGB recommended the Applicant’s post to be converted from temporary to permanent. The role of the SGB is to govern the school as stated by the South African’s Schools Act 84 of 1996. (SASA) Section 16(1) of the SASA provides for the governance of a public school. The power of the SGB is not delegated power but original power. The Respondent ignored the recommendation of the SGB without a valid and legal reason which constitutes a contravention of the SASA.

12. The application for conversion of the Applicant’s post was made in terms of Collective Agreement 4 of 2018, Clause 4.2 and Section 6B of the EEA. Collective Agreement 4 of 2018 and the EEA are the legislations that give authority to convert temporary educators to permanent educators.

13. Section B6.4.1 of Collective Agreement 4 of 2016 states that the principal may, after consultation, recommend educators to be declared in addition. Section B.6.4.3 states that the identified educator shall be informed by the Provincial Department of Education. This agreement was concluded in line with provisions set out in Section 189 of the Labour Relations Act, no 66 of 1995 as amended (LRA) and it states the procedure when an employer contemplates to dismiss one or more employees due to operational requirements.

14. Lastly, the Applicant is appropriately qualified and is registered with SACE. In terms of Collective Agreement 4 of 2018, clause 4.2.1.2 and 4.2.13 a temporary educator must qualify for the post in question, and the temporary educator must be registered by SACE.

The Respondent’s case

15. The Respondent’s argument is summarised as follows. When the Applicant was first appointed by the Respondent, Collective Agreement 4 of 2018 was not in existence and its provisions did not apply. The provisions of Clause 6B of the EEA applied at that time.

16. The qualification of the Applicant is a Bachelor of Education in the Senior and Further Education and Training Phase. This means that the Applicant is not qualified to teach in the foundation intermediate phases in a Primary School. He is only qualified to teach in the senior phase. When the school submitted its application, the school misled the Respondent by submitting that the Applicant had passed Afrikaans Home Language and English Home Language. Furthermore, the school stated in the same application that the Applicant was going to teach these subjects in Grades 6 and 7.

17. The EEA defines an educator as: “any person, who teaches, educates or trains other persons or who provides professional educational services, including professional therapy and education psychological services, at any public school, departmental office or adult basic education center and who is appointed in a post on any educator established under this Act.” In line with this definition, it would be wrong for anyone to appoint a person to teach, educate or train learners on a Subject and Grade that he is not qualified to teach. That in itself will not be in the best interest of the child as dictated to by section 28(2) of the Constitution of the Republic of South Africa, 1996.

18. Post profiles are developed by the school itself and not the Respondent. The school developed a profile that does not match the qualification of the Applicant.

19. Section 3.3.3 of the Collective Agreement 4 of 2018 and Section 6B of the EEA provides that the Head of Department may, after consultation with the governing body of a public school, convert the temporary appointment of an educator appointed to a post on the educator establishment of a public school into a permanent appointment in that post without the recommendation of the governing body.

20. Section 4.7 of the Collective Agreement 4 of 2018 states that any person interpreting or applying this agreement must interpret its provisions to give effect to the objects and applicable provisions of the EEA. PAM and the Collective Agreement 4 of 2018 provides impetus to the decision of the Respondent. The Applicant further, failed to acknowledge the fact that the interpretation of clause 4.2.1.2 of the Collective Agreement 4 of 2018 must be interpreted in line with section 3.2.1.1 of the PAM and that the educator must match the post profile so as to give effect to clause 4.2.1.2.

21. The Respondent further argued that Section 189 of the LRA is not applicable in this case and that the Applicant failed to establish the grounds for an unfair discrimination.

SUMMARY OF ARGUMENTS

22. The Respondent argued that the Applicant failed to interpret the provisions of Collective agreement 4 of 2018 correctly. The Applicant did not meet the post profile in terms of his qualification.

23. The Applicant based its argument on the Harksen v Lane NO and Others (CCT 9/97) [1997] (ZACC) 12 test which was established by the Constitutional Court in determining discrimination on arbitrary grounds and argued that the Respondent unfairly discriminated against the Applicant, although the exact basis for this are unclear whether it is the qualifications or the Applicant’s previous resignation. Continuously appointing the applicant on temporary basis and refusing to appoint him permanently, it was alleged, is a violation of the applicant’s constitutional right to fair labour practice and fair administrative action.

24. The Applicant further argued that the Applicant qualified for conversion as per the recommendation of the SGB but the Respondent failed to implement the recommendations for reasons unknown to the Applicant.

ANALYSIS OF EVIDENCE AND ARGUMENT

25. In this case, the following facts are common cause. Firstly, the Applicant was employed by the SGB in July 2019 after his resignation in June of the same year. In December 2020 his contract with the SGB came to an end. The school applied for the conversion of the Applicant’s post from temporary to permanent on numerous occasions but was unsuccessful.

26. The Applicant relied on Collective Agreement 4 0f 2016 Transfer of Serving Educators in Terms of Operational Requirements and Collective Agreement 4 of 2018. The appointment and Conversion of Temporary Educators to Posts on the Educator Establishment.

27. Collective Agreement 4 of 2018, clause 4.2 states the following as requirements for conversion:
4.2 Eligibility for conversion
4.2.1 A temporary educator may only be appointed permanently to funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment if:
4.2.1.1 the temporary educator has been employed in a temporary capacity for a continuous period of at least three months at the time of conversion;
4.2.1.2 the temporary educator qualifies for the post in question;
4.2.1.3 the temporary educator is registered with the South African Council of Educators (SACE); and
4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa and is a fit and proper person as contemplated in the Immigration Act 13 of 2002, as amended and section 10 of the Public Service Act, 1994) proclamation No. 103 of 1994) as amended.

28. Although the Applicant in this case is a qualified educator and is registered with SACE, he however did not qualify for the post in question in terms of the post profile which required that the Applicant be in possession of Afrikaans and English Home Language. Further, the Applicant’s qualification is a Bachelor of Education in the Senior and Further Education and Training Phase; therefore he is not qualified to teach in the Foundation and Intermediate Phases.

29. Section 3.3.3 of Collective Agreement 4 of 2018 and section 6B of the EEA state that the Head of Department may, after consultation with the governing body of a public school, convert the temporary appointment of an educator appointed to a post on the educator establishment of a public school into a permanent appointment in that post without the recommendation of the governing body. The EEA and Collective Agreement 4 of 2018 already limit the powers of the SGB to recommendations only. In terms of the Act and this agreement, the SGB can only make recommendations and the powers to appoint or convert to permanent lies with the Head of Department. The argument of the Applicant that the SGB recommended the Applicant’s post to be converted is therefore invalid as the powers to appoint or convert lay with the Head of Department. It is also important to note that the post profiles are developed by the schools and not the Respondent.

30. Furthermore, Section 4.7.2 of Collective Agreement 4 of 2018 states that any person interpreting or applying this agreement must interpret its provisions to give effect to the objects and applicable provisions of the EEA and the PAM. Collective Agreement 4 of 2018 must therefore be interpreted in line with section 3.2.1.1 of the PAM.

31. Collective Agreement 4 of 2016 relates to the Transfer of Serving Educators in Terms of Operational Requirements of the Department of Education. The transfer process that is referred to in Annexure A of the Collective Agreement 4 of 2016 does not apply on educators that are temporary in the system. It refers to educator that are permanent in the system but whose posts have become redundant due to operational reasons. Educators additional to the educator/staff establishment as referred to in this agreement does not refer to educators that are temporarily appointed in additional posts, but educators that are in excess to the staff establishment of the public school. Therefore, the provisions of Collective Agreement 4 of 2016 do not apply on the Applicant.

FINDING
32. I find that the Respondent correctly applied Section 4.2, 4.3, 4.4 and 4.5 of Collective Agreement 4 of 2018. I also find that Collective Agreement 4 of 2016 is not applicable to the Applicant. The Applicant’s submissions on discrimination fall outside the jurisdiction of the Council.

AWARD

33. The dispute referral of the Applicant is dismissed. I make no order as to costs.

Commissioner: Nozipho B Khumalo
Date : 16/08/2021.