IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN

Case No: ELRC 70-25/26WC

In the matter between

G.Williams Applicant

And

Department of Education-Western Cape Respondent

Date of award: 7 August 2025
AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter was heard virtually over two days, 6 June 2025 and 17 July 2025. The matter was concluded when the parties submitted their closing arguments in writing on 25 July 2025.
2. The Applicant was represented by Ms A. Petersen, a representative of the trade union NAPTOSA. The Respondent was represented by Ms S. Diedericks, a labour relations official from the Labour Relations Department of the Respondent.
3. Two bundles of documents were submitted as supporting evidence.
4. Proceedings were digitally recorded.

BACKGROUND

5. The Applicant, a post level 1 educator, was employed at the Alta du Toit special needs school. She was employed on a fixed term contract basis for the following periods:
   18 July 2023 – 17 November 2023
   01 January 2024 – 31 March 2024
   1 April 2024 – 30 June 2024
   01 July 2024 – 31 December 2024
   1 January 2025 – 31 March 2025
6. During the first contract period she was a substitute teacher. She applied for a vacant substantive post and was shortlisted and interviewed for the post. In January 2024 she was employed in the same substantive post that she had applied for, but on a contract basis. According to her, during this time, the Deputy Principal sent her documents for completion for the conversion of her temporary position to a permanent position. She duly completed the documents and handed same to the Deputy Principal for onward submission to the Department. To date she has not received a response to her application for conversion. In February 2025 she received the outcome of her application for the vacant substantive post. She was informed that she was unsuccessful in her application and that Mr Goodwin had been appointed to the post.
7. She claims that as she was occupying the substantive vacant post for a period in excess of three months, she ought to have been converted. In the same breath, she also states in her referral that she had a reasonable expectation that she would be appointed.
8. I enquired about the true nature of the dispute as it was unclear whether her claim was an unfair labour practice in terms of section 186(1)(a) of the LRA or a claim in terms of section 186(1) (b) in relation to a reasonable expectation of the renewal of a fixed term contract or whether she was claiming that she ought to have been converted to permanency in terms of the provisions of Collective Agreement 4 of 2018. After much engagement with the parties, I established that the dispute was about conversion, effectively, the interpretation and application of Collective Agreement 4 of 2018.
9. The Respondent’s version is that no conversion application was received from the Applicant and that even if an application had been received, the Applicant would not have been converted because she was not suitably qualified.
10. It is common cause that an educator in a substitute post is not eligible for conversion.

ISSUE IN DISPUTE

11. I must decide whether the Applicant applied for the conversion of her temporary contract to permanency and whether she met the criteria for conversion from a temporary to a permanent post as provided for in Collective Agreement 4 of 2018.

SUMMARY OF EVIDENCE

Applicant’s Evidence

12. Gwyneth Roberts Williams: She testified that she is currently employed by the School Governing Body, and she teaches English and arts and crafts.
13. Her first contract position with the Respondent was for the period July 2023 – November 2023 when she was employed as a substitute teacher for an educator that had gone on maternity leave.
14. During her subsequent tenure in the substantive vacant post, her principal told her that she qualified for conversion and that he would apply for her conversion. The principal randomly informed her that her application was still in progress. During or about November 2024, he informed her that her qualifications were being questioned on the basis that she was not suitably qualified for the foundation phase. In December 2024, she was informed that the Department required her to send through conversion forms. She did so by handing in the completed conversion forms to Mrs Michelle Owen, the Deputy Principal. Educators do not have access to the platform to upload the documents themselves. Mrs Owen reports to the principal who confirmed that the documents had been uploaded.
15. She believes that she has the necessary qualifications to be converted. In addition, she also has the necessary subjects that qualifies her to deal with learners with disabilities. The fact that she was shortlisted and interviewed for the very same post further cemented her belief that she had the necessary qualifications for the post. At the time there were 7 educators that were in line to be converted. They were told that all contract educators would be converted. The others were converted while she was not. She expected to be converted.
16. The contract post that she was in for the period January 2024 – December 2024 was a vacant substantive post that became vacant after the educator that held that post retired.
17. During cross examination she said that the principal informed her that the Department was questioning her qualifications because she lacked qualifications in foundation phase and numeracy and literacy. He asked her whether she would accept an SGB post if she was unsuccessful. She understood what the principal said about the foundation phase, and she agreed that the Department had a valid ground for not appointing her. However, she felt that her honours qualification should be sufficient.

Respondent’s Evidence

18. Michelle Owen: She is the Deputy Principal at Alta du Toit School. She testified that as part of her duties she submits the nomination forms for the appointment of contract educators to the Department. She also submits the applications for conversions on behalf of educators that qualify. She did not submit any conversion application on behalf of the Applicant.
19. She completed and submitted four nomination forms on behalf of the Applicant. The DPA2 form is the form that is completed for nominations to contract posts. The form is accompanied by the A3 nomination form. The Applicant was aware that they were nomination forms as she explained this to her. Her explanation was very clear and at no stage did she tell the Applicant that the forms were for conversion.
20. At the time that the Department offered a condonation of certain requirements in respect of conversion, the Applicant did not qualify because she was in a substitute post at the time. The Applicant did not approach her at anytime with regards to conversion. Instead, she applied for an advertised vacant substantive post. She was shortlisted and interviewed for the post, and she was the 2nd nominated candidate for the post. The first nominated candidate could not be appointed. Even though the Applicant was the second nominated candidate, it was established that she was not suitably qualified for the post. The Applicant is a qualified high school teacher whereas the post that she applied for, and for which she claims she ought to have been converted to is for the foundation phase.
21. Crystal Myburgh: She is the Assistant Director in the Recruitment and Selection Department. She testified that the vacant substantive post that the Applicant applied for was in the foundation phase. The Applicant is not suitably qualified to teach in the foundation phase.
22. Their department did not receive any application for conversion from the Applicant. Although she does not personally deal with contract appointments, she is familiar with the portals for the uploading of applications and the necessary forms that have to be completed. The DPA 2 form is utilised for appointments to substitute positions and other contract positions. The conversion documents are similar but differ in the sense that more information relevant to conversions would need to be provided. The nature of the questions will show whether the application is for conversion or for a contract. There is also a conversion certificate that must be completed by the circuit manager. Irrespective of the heading of the form, their department would ensure due diligence and check all the information and requirements.
23. She also said that an application for conversion is done through the e-recruit platform while the application for a contract post is done through a different platform.
24. During cross examination she testified that their department determines whether an educator is suitably qualified for the post. The Applicant was nominated for the post by the SGB. Her colleagues verified the Applicant’s qualifications and determined that she was not suitably qualified for the post. The Department of Higher Education and Training (DHET) confirmed that Recruitment and Selections’ evaluation was indeed correct. It was confirmed that the applicant is suitably qualified to teach English and Life Orientation to Senior phase and FET. The Applicant would need additional qualifications to teach Severely Intellectually Disabled learners and to teach in the relevant phase, which is the foundation phase. It is not the SGB’s role to determine the suitability of a candidate in terms of qualifications. ARGUMENTS
25. I do not summarise the arguments but shall refer to same in my analysis.

ANALYSIS

26. A dispute about the interpretation and application of a collective agreement logically requires a difference of opinion. A difference of opinion about interpretation entails a difference of opinion about what a provision of the agreement means. A dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether a particular provision can be invoked. Once application is proved, the referring party can obtain, pursuant to such a finding, substantive relief. In this instance, if it is found that the collective agreement applies to these set of facts then, the Applicant would be entitled to relief in the form of conversion to a permanent position.
27. There is no dispute about the interpretation of the collective agreement in dispute. In essence the dispute is about whether the Applicant met the requirements outlined in the agreement to be converted from a temporary educator to a permanent educator. It is not in dispute that conversion does not happen automatically once an educator meets the requirements, but that an educator is required to apply for conversion. The parties are also in dispute as to whether the Applicant applied for conversion in the first place.
28. The Applicant bears the onus to prove her claim on a balance of probabilities.
29. The relevant provisions of Collective Agreement 4 of 2018 read as follows:
    4.1. Application
    This paragraph applies to temporary educators who are on a fixed term contract to a funded, substantive and vacant level 1 post at a public school that is on the approved educator establishment.
    4.2.1. Eligibility for conversions
    The educator may only be appointed to permanency 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
    These provisions must be read together with section 6(a) and 6(b) of the Employment of Educators Act , 1998 and the WCED Circular 0020/2020, dated 23 July 2020, in terms of which 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.
30. I deal firstly with the question of whether the Applicant applied for conversion in the first place. The union argues that the last DPA2 that was completed by the Applicant was an application for conversion. Not only is this categorically denied by the Deputy principal who processed forms on behalf of the Applicant, but this is corroborated by the Department’s evidence that no conversion application was received. The DPA2 form that the Applicant completed is the same as the DPA2 form that she had completed on 3 prior occasions, all of which were for contract positions. Further the Deputy principal explained to the Applicant that she was being nominated for another contract position and that at no time did she indicate to the Applicant that the forms that she completed. There is no plausible reason why the Deputy Principal would be untruthful. Further, the evidence was that different platforms are used to upload forms relating to contract posts and conversion. The platform through which the Applicant’s forms were uploaded was that used for contract positions.
31. During her testimony, the Applicant appeared to speak interchangeably about conversion and her application via the recruitment and selection process for the advertised vacant substantive post. However, it is evident that when the principal spoke to her about a permanent appointment in relation to her qualifications that were being questioned, he was talking about her application for the advertised post and not an application for conversion. There is no credible evidence before me that the Applicant applied for conversion.
32. Even if the Applicant did apply for conversion, it is evident that she would have been unsuccessful as she was not suitably qualified for the post. In fact, the Applicant conceded, albeit reluctantly, under cross examination that she was indeed not suitably qualified for the foundation phase.
33. The union argues that the fact that the Applicant was interviewed and shortlisted for the post means that she was suitably qualified. It is argued further that the fact that her qualifications were questioned after almost a year of serving in the position undermines any claim that she was not suitably qualified. On the first point, it must be noted that it is the School Governing Body that shortlists and interviews candidates, but it is the Department that makes the final decision to appoint. The Assistant Director from recruitment and Selection testified that her department performed the necessary checks, verified by the Department of Higher Education and Training and found that the Applicant was not suitably qualified for the foundation phase. The union argues that the Applicant is qualified for the SID Intermediate phase. In terms of the evidence the vacant substantive post is in the foundation phase and not the Intermediate phase. This could perhaps be an inadvertent admission by the union that the Applicant is not suitably qualified, or an error.
34. The fact that the Applicant was in the contract post for almost a year does not negate the requirements of the collective agreement that the educator must be suitably qualified.
35. On the totality of the evidence before me, I find that the Applicant does not meet the criteria to be converted to a permanent post.

AWARD

Collective Agreement 4 of 2018 was correctly applied. The Applicant is not entitled to any relief.

ELRC Panellist
A.Singh-Bhoopchand