Commissioner: Lanthis Taylor
Case No.: ELRC1302-24/25WC
Date of Award: 9 June 2025

In the Arbitration between:

SADTU obo Zuziwe Mgcodo
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
(Respondent)

Union / Applicant’s representative: Mr. Tesrel Fortuin & Ms. Mgcodo
Telephone:
Telefax:
Email:

First Respondent’s representative: Ms. Ghaatoon Khan (WCED Representative)
Telephone:
Telefax:
Email:

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 3 June 2025 by way of the virtual platform, Microsoft Teams. The applicant, Ms. Zuziwe Mgcodo was represented by Mr. Tesrel Fortuin, an organizer of SADTU. Ms. Ghaatoon Khan represented the respondent, the Department of Education – Western Cape. The proceedings were conducted in English and were digitally recorded.

THE ISSUE IN DISPUTE

2. The issue before me relates to the conversion of educators employed on a temporary basis to that of full-time employees where Ms. Mgcodo claims that she should have been converted to permanency.

BACKGROUND TO THE ISSUE

3. The applicant on own accord, initially referred an alleged unfair dismissal dispute with condonation application. She indicated in the documents that she was dismissed on 27 January 2025 and referred the dispute on 26 February 2025. However, the body of the referral leaned towards a claim of non-conversion from temporary to permanent status. The condonation application was unopposed and on this basis the commissioner deciding the condonation application for the alleged unfair dismissal determined that no condonation was required on the dates presented to him in the documents.
4. At the outset of today’s proceedings, I exercised my judicial right to determine the true nature of the dispute and the parties were given the overview of who had the burden of proof in a dismissal dispute and who had the burden of proof in a conversion dispute. After much hither and thither, it was then presented that the applicant’s dispute related to non-conversion in line with Collective Agreement 2/2024.
5. It is common cause that the applicant was employed on fixed term contracts at Senako High School from 6 January 2022 until 31 December 2024. It is further common cause that the Department of Education embarked on a conversion process where fixed term contract employees would be converted to permanent employee status if the requirements are met for the person to be converted. This process is governed by a signed collective agreement 02/2024.

SUMMARY OF THE EVIDENCE & ARGUMENTS:

6. The respondent presented a bundle of documents in support of its version. The applicant did not present any documentary evidence. She testified on her own accord under oath. I am required by the LRA to provide brief reasons to substantiate my findings and determinations in this dispute. As such, despite considering all the submissions presented, I will only deal with what I believe is relevant and what will relate to the core issues in dispute.

OPENING STATEMENTS

7. The applicant bore the burden of proof and as such commenced with presenting her version. Mr. Fortuin stated that the applicant was an educator at Senako High School who was appointed into a post which she was under the impression was a substantive vacant post. She would testify that the principal had indicated that it was a substantive vacant post.
8. The respondent’s representative, Ms. Khan stated that the applicant did not qualify to be converted as she was not in a substantive vacant post during 2024. Collective Agreement 2/2024 stipulates as part of the requirements for conversion that the educator has to be in a funded substantive vacant post. Her bundle of evidence would show that the applicant was in an additional post and as such could not be converted.

THE APPLICANT’S CASE

9. Mr. Fortuin initially commenced with the leading of the applicant’s evidence in chief. He however appeared to falter and the Commissioner by agreement adopted an inquisitorial approach to hearing the applicant’s evidence. The applicant Ms. Zuziwe Mgcodo, testified on own accord under oath. She stated that the post that she had applied for in 2022 was a vacant substantive level 1 post. The incumbent had left and she was under the impression that she was filling that post. She stated that she was in the post for three years with her contract being renewed annually.
10. She was referred to the respondent’s bundle of documents where she confirmed her appointment on contract effective 26 January 2022 in post number 311. Further documents reflected that she was then appointed on 1 January 2024 on contract in post number 332 and again on 1 April 2024 in post number 343. She acknowledged and agreed to the contracted periods and agreed that in 2024, she was contracted from 1 January to 31 March and from 1 April to 31 December 2024. She stated that she was under the impression that she was in a vacant substantive post.
11. Mgcodo stated that the principal encouraged the staff to submit their documents. These were successfully uploaded. Being nominated for conversion created a reasonable expectation for her to be converted. She was thus justified in expecting to be appointed. Mgcodo agreed that there were criteria to be met but she was not advised that she was in an additional post. She agreed further that the WCED has the discretion to convert an applicant if the criteria are met. She stated that she was not told that she does not qualify, was not given the nature of the post and was not told that her conversion application was unsuccessful. She stated that despite the school losing 4 posts, five of the nine contract teachers were called back for further contracts in 2025 whereas she was not.
12. During cross examination, she confirmed that the respondent’s bundle contained minutes of a meeting held with the staff in September 2024 and these minutes stated that contract posts would not be renewed the following year (2025). She confirmed that her signature was appended to an attendance register but claimed that she was not aware of the non-renewal of contracts as this was not discussed at that meeting. The applicant claimed to not have seen the letter outlining the non-renewal despite it being put to her that the principal gave the letter to all contract employees.
13. The applicant confirmed that she understood that in order to be converted, the contract employee must be in a funded vacant substantive post at the time of applying for the conversion. She confirmed that the documents presented by the respondent reflect that she occupied post 311 in 2022, 332 from 1 January 2024 to 31 March 2024 and post 343 from 1 April to 31 December 2024 and that these were posts that were additional to the establishment. She however stated that she feels that it was unfair to be misled by being kept in the dark and not being made aware of the description of her post. She however agreed that the documents relating to the Persal system reflected that these were additional posts.

RESPONDENT’S CASE:

14. The respondent’s representative, Ms. Khan indicated that the respondent was not calling any witnesses and closed the respondent’s case.

CLOSING ARGUMENTS:

15. Both parties submitted oral closing arguments which I have considered and which will form a part of the overall award. The closing arguments presented a synopsis of the oral testimony presented. The gist of the applicant’s closing argument is that she qualified for the conversion on basis that the principal alluded that she would be converted which created a reasonable expectation. Even though this was not documented, the reasonable expectation still held weight as an argument. After the documentation had been submitted, the Department failed to notify the applicant that her conversion was not successful which in itself created an expectation. The applicant’s representative stated that the Collective agreement speaks to fair labour practices but the respondent’s failure to provide her with an answer was not fair.
16. The respondent’s representative stated that the respondent presented documentary evidence to show that it did not err in the conversion process. The conversion process is outlined in Collective Agreement 2/2024 read with circular 2/2020 and is also outlined in Section 6b of the Employment of Educators Act of 1998. Conversions are done at the discretion of the Department of Education or its delegated authority. She stated that the applicant was well aware that the contract was not going to be renewed and that the applicant had received correspondence to this effect even though she denied it. The applicant was in additional posts throughout her tenure at the school and in cross examination agreed that she was additional to the staff establishment. The applicant cannot prove that she was in a substantive vacant post which is part of the criteria for conversion.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS:

17. The issue before me is relatively simple in effect. The applicant’s contention is that she is suitably qualified to be converted from part-time to full-time employment and as such seeks to be converted as the primary remedy. The respondent has a directly opposing view relating to the applicant being suitably qualified.
18. It is common cause that the applicant was employed on fixed term contracts over the period 26 January 2022 to 31 December 2024 and that her dispute relates to the period of 2024. She confirmed that she had been given two contracts for that year; viz. 1 January 2024 to 31 March 2024 and a further contract from 1 April 2024 to 31 December 2024. It is well documented that the Department of Education embarked on a process of converting contract employees to full-time employment. The conversion process and requirements for conversion is outlined in the Collective Agreement 2/2024.
19. Collective agreement 2/2024 stipulates the requirements for conversion. Paragraph 4.2 indicates the following:

4.2.1. A temporary educator may only be appointed permanently to a 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 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.

20. There is no doubt that the applicant meets the requirements of all the sub-paragraphs except the disputed paragraph of 4.2.1 and sub-paragraph 4.2.1.2.
    Paragraph 4.2.1. indicates that “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. (my emphasis). Sub-paragraph 4.2.1.2. indicates “the temporary educator qualifies for the post in question”. This clause relates to the very funded, substantive and vacant level 1 post referred to in paragraph 4.2.1 and directs that in order to be considered to be converted to permanency, the educator must qualify for the post in question (i.e. phase appropriately qualified) and also meet all the other requirements as stipulated in the collective agreement.
21. The applicant has not presented evidence that she was occupying a funded, substantive vacant level 1 post which was on the approved educator establishment at Senako High School. The respondent’s representative, Ms. Khan, on the other hand, presented documentary evidence which was shown to the applicant and which indicated that she occupied additional posts on the Persal system in 2024.
22. The applicant further contended that by being nominated for conversion, this created a reasonable expectation for conversion. She stated that the principal had alluded to that she would be converted but she failed to provide any evidence to substantiate this submission. She also did not deem it appropriate to call or even subpoena the principal to come to testify in support of her submission.
23. The applicant’s representative stated that the Collective Agreement speaks of promoting fair labour practices but the respondent’s failure to provide her with an answer or feedback that her conversion application was not successful, was not fair. During cross examination, the applicant confirmed that the minutes presented by the respondent reflected that there would not be any renewal of contracts in 2025 and she also confirmed that her signature was appended to the attendance register for that meeting. However, despite this she indicated that she was not aware of the non-renewal of contracts or had not received a letter confirming the non-renewal of her contract which was sent out as a standard letter by the department to all contract employees whose contracts were ending on 31 December 2024. In my view, the applicant’s contention in this regard is highly improbable and unlikely.
24. As indicated in paragraph 3 above, the applicant initially referred this dispute as an unfair dismissal dispute. During her evidence in chief, she indicated that five of nine temporary employees were called back in 2025 on further fixed term contracts. She was not called back. This lends credence to the view that she was well aware that her contract was coming to an end at the end of December 2024. If she was not aware, then it would have made perfect sense for her to report for duty on the first day of the re-opening of the school in January 2025 as she had done on previous occasions and not to refer a dismissal dispute on 26 February 2025 without ever attempting to tender her services any time before then. It is my view that the applicant was well aware that her conversion was unsuccessful and that she only referred her dispute to the bargaining council after she became aware that some of her former temporary employed colleagues had been given further contracts whereas she had not.
25. In Dioma and Another v Mthukwane NO and Others (JR784/2016) [2020] ZALCJHB 138 (11 August 2020), the court referred to Western Cape Department of Health v Van Wyk & others which outlined the following principles:
    “ i. When interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of the collective agreement;
    ii. The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
    iii. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement.
    iv. The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the Courts or arbitrators to make a contract for the parties, other than the one they in fact made.”
26. Paragraph 4.2.1 of the Collective Agreement 2/2024 outlines that “A temporary educator may only be appointed permanently to a “funded, substantive and vacant level 1 post at a public school which is on the approved educator establishment.” The applicant has not presented evidence that she was occupying a funded, substantive vacant level 1 post which was on the approved educator establishment as is required in order to be converted from temporary status to permanent status. The applicant confirmed that the WCED has the final authority in the conversion process. She did not present any tangible evidence to support her claim or that the respondent, WCED, acted capriciously or irrationally when it did not convert her to permanency.
27. It must be noted that the applicant’s representative, Mr. Fortuin indicated that the union was not party to the dispute from the outset. The union came into the dispute to assist its member just before the arbitration process and on that basis, it was acting on the mandate of the member. If this had not been the case, I would seriously have considered a cost order against the union for bringing a frivolous case before the ELRC for arbitration.
28. Therefore, in consideration of all of the above, I make the following award:

AWARD:

29. The applicant, Zuziwe Mgcondo, does not meet the requirements for conversion in line with the Collective Agreement 2/2024. She is not entitled to any relief. There is no order as to costs.

L M Taylor
Commissioner