18 November 2025 -ELRC1463-24/25

Case Number: ELRC1463-24/25
Commissioner: Carlton Johnson
Date of Ruling: 17 November 2025

In the MATTER between

NATIONAL TEACHERS UNION OBO MDOLOMBA & 2 OTHERS
(/Applicant)

And

WESTERN CAPE EDUCATION DEPARTMENT
(Respondent)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1) The arbitration hearing in this matter was heard on 29 August 2025 and 21 October 2025. The matter was heard via virtual platform, and the process was digitally recorded.
2) The applicants were represented by an official of NATU, Sibusiso Shakwana and Abigail Blankner appeared for the respondent.
3) At the conclusion of the evidence part of the arbitration it was agreed that the written closing arguments would be submitted by close of business on 31st October 2025. The respondent requested an extension of this period due to the illness of its representative, Abigail Blankner. I granted further extension to both parties until the 3rd of November 2025. I have subsequently received closing arguments from both parties. Since the arguments are part of the extensive record in this matter it is not necessary to restate the arguments for purposes of this award. All the submissions have, however, been considered in rendering the arbitration award.
THE ISSUE TO BE DECIDED
4) I must decide whether the respondent contravened the provisions of ELRC Collective Agreement 2 of 2024 when it failed to convert the applicants to permanent positions on the staff establishment.
SUMMARY OF EVIDENCE AND ARGUMENT
THE APPLICANT’S CASE
5) Siposetu Pike is the first applicant in this matter, and she presented the following evidence under oath. She teaches Mathematical Literacy for grades 10 to 12. In January 2021 she saw an advertisement and applied for the position of educator. She was subsequently appointed to the position.
6) Pike submitted that the department had failed to convert her position to permanency even though at least 10 other educators had been converted before her. When she questioned this with the principal, she was told that the school was using an alphabetical order as a criterion, to decide who should be converted next. This selection criterion is not covered in the collective agreement. All the educators that were converted commenced employment after her. Pike further submitted that performance was also not a criterion stipulated in the collective agreement.
7) She was in the position for more than three months and she meets all the other criteria for conversion. During cross examination it was put to the witness that she did not qualify for conversion as she was not in a substantive funded position. Pike testified that when she applied for the position it was indicated that it was a substantive funded position. Pike insisted that the principal told her that the position she was appointed in was a substantive funded post.
8) Phiona Muocha is the second applicant in this matter, and she presented the following evidence under oath. She teaches the subjects of Life Orientation and History. She commenced employment in November 2022 after a teacher resigned. The teacher was in a permanent post at the time. She was appointed to this post. In 2023 she was on a list of 10 educators who were being considered for conversion. However, she was not converted. She was told that she would be converted but this was not done. At some point she was nr7 on the list of teachers waiting to be converted. The principal told her that he was attending to conversions alphabetically.
9) During cross examination it was put to the witness that she was in an additional post. The witness stated that she was not aware of this as the principal told her that she was in a substantive funded post. The principal told her that she would be converted.
10) Namhla Mdolomba is the third applicant in the matter, and she presented the following evidence under oath. She teaches the subjects of History and English and was appointed in June 2023 in a substantive funded post, following the resignation of a teacher.
11) She was never converted and filed a grievance. She qualifies for conversion on the basis that she meets all the criteria. It was put to the witness that she was in an additional post and not a substantive funded post. According to the applicant she was not aware of the version that she was not in a substantive funded post. It was her understanding that she was indeed in a funded substantive post.
12) Njabulo Mtolo presented the following evidence under oath. He is a shopsteward who is very familiar with the collective agreement around conversion. The witness presented extensive evidence around the process of conversion and the operation of the collective agreement. I have considered the evidence presented by the witness but for reasons that will become evident in my analysis I do not find it necessary to restate this evidence for purposes of the award. It should however be noted that the evidence was duly considered in arriving at my findings in this matter.
THE RESPONDENT’S CASE
13) Harry Arthur testified that part of his responsibility is to ensure that the school operates within the approved staff establishment. The applicants in this matter were considered for conversion but because they were not in substantive vacant posts, such conversions could not be approved. Arthur stated that according to the records at his disposal all three applicants were employed in additional posts.
14) Christal Myburgh testified under oath that her department is responsible for the processing of documentation pertaining to conversion applications. Once all the information is uploaded and received by the department it is then subjected to a verification process. The primary part of this verification is to establish whether the applicant for conversion is in a substantive vacant post. Appointments that exceed the staff establishment of the school are not permitted. Based on the information on the system the applicants were not in substantive vacant posts. The applicants therefore did not qualify for conversion.
ANALYSIS OF EVIDENCE AND ARGUMENT
15) The dispute was referred as an interpretation of ELRC Collective Agreement 2 of 2024 with specific reference to the appointment and conversion of temporary educators to posts on the educator establishment.
16) In dealing with the interpretation of a collective agreement, I considered the matter of Western Cape Department of Health v Van Wyk and Others (2014) 35 ILJ 3078 (LAC). The court had this to say at para 22 of the judgment: In interpreting the collective agreement the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. Furthermore, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract. Since the arbitrator derives his/her powers from the Act he/she must at all times take into account the primary objects of the Act. The primary objects of the Act are better served by an approach that is practical to the interpretation and application 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.
17) In the present matter the primary aim of the collective agreement is to consider and approve the conversion of temporary teachers into substantive vacant positions on the permanent staff establishment of the department. To facilitate this process, the parties agreed through the collective agreement the criteria that will be applied when conversion applications are considered.
18) The collective agreement sets out several conditions or requirements for conversion but in the present matter, I will focus on whether the applicants were appointed in substantive vacant positions. To qualify for conversion into the permanent staff establishment, the educator must be in a substantive vacant post. The evidence presented by the respondent in this matter is that the applicants were all appointed to temporary positions additional to the staff establishment. The evidence points to the fact that the applicants were not appointed in substantive vacant positions. I accept that at some point there was some misunderstanding between the applicants and the school principal regarding their status, but the fact of the matter is that the applicants were not appointed in substantive vacant positions.
19) To this extent, I find that the respondent witnesses presented clear and coherent evidence that based on the information on the HR system of the department, the applicants were appointed in positions additional to the staff establishment. I have no reason to question the veracity of the evidence presented by the respondent. Both witnesses came across as honest and credible. There was no indication that their testimony was contrived in any way or that they had reason to disadvantage the applicants. In my view the witnesses of the respondent presented credible evidence which was supported by documentary evidence presented during the arbitration proceedings.
20) I therefore accept the version of the respondent that the applicants were appointed in positions additional to the staff establishment. In other words, the applicants were not in substantive vacant positions. On this basis the applicants do not qualify for conversion based on the criterion stipulated in the collective agreement. I find no evidence that the respondent had exercised its discretion, capriciously or unfairly.
21) In these circumstances it follows that the claim of the applicants for conversion must fail.
AWARD
22) I find that the respondent has not breached the terms of the collective agreement.
23) The applicants are not entitled to any relief.