IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC1229-25/26WC

In the matter between

SADTU obo Zanela Dyantyi Applicant

and

Western Cape Education Department Respondent

PANELLIST: Dr. GC. van der Berg.
Award: Finalized on 18 August 2026

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing took place via digital video conference (ZOOM) on 27 March 2026, 11 May 2026 and 03 August 2026 at 09:00 respectively. The proceedings were both digitally and manually recorded. The applicant, Zanela Dyantyi, was represented by Tesrel Fortuin an official of SADTU. The respondent, Western Cape Education Department, was represented by Nomtuthezelo Vena, Labour Relations Officer, from the Department of Education. The dispute was scheduled for arbitration in terms of section 24 of the Labour relations Act 66 of 1995 as amended (“the LRA”) as an interpretation and application of a collective agreement.

Issue to be decided.

2. The dispute has been referred and categorized as a dispute about the interpretation and application of Collective Agreement Number 4 of 2016 and whether the applicant’s transfer of serving educator in terms of operational requirements was fair. Background to the Dispute
3. The applicant was previously employed at the Cape Academy as from 2014 to 2025 as an IsiXhosa language teacher for all grades (grade 8-12). The applicant was transferred to Chrestway High School in terms of the Collective Agreement 4 of 2016. The applicant accepted the transfer on the basis that she would be teaching IsiXhosa, but on arrival at the school she was told there were not sufficient learners, and she is now teaching Life Orientation in English for grade 8 and 9 learners. It is also noted that whilst the language of teaching is English, the learners are predominant Afrikaans speaking. The school further indicated that they would seek to increase IsiXhosa in 2027.
4. It is noted that the applicant accepted the position and the transfer on the basis that she would be teaching in IsiXhosa, and that the department did not honour the terms of the transfer, as the transfer now does not match her skills and experience. According to the applicant the department therefore did not complying with the terms of the Collective Agreement.
5. The dispute was referred to the ELRC on 30 January 2026 and a conciliation process took place using the virtual platform Microsoft Teams and it was not resolved on 27 February 2026. Then the dispute was set down for arbitration on 27 March 2026 and the representative of the applicant asked for postponement after she testified in English and before cross-examination because the applicant requested for an interpreter only before cross-examination and it was part of the request in the referral form. This was accepted as the correct process must be followed and the representative of the respondent had no objection. The arbitration was re-scheduled for 11 May 2026, and the cross examination of the applicant was completed and the first witness of the respondent testified. It was postponed due to the extreme weather conditions and rescheduled for 29 July 2026. The first witness of the respondent was cross examined and re-examined plus a further three (3) witnesses of the respondent testified and the arbitration was concluded.
6. The applicant and the representative of the respondent presented opening statements on 27 March 2026, and the representative of the applicant and respondent presented written closing statements, as agreed on or before 11 August 2026. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered. Survey of evidence and argument Documentary evidence.
7. Both parties submitted a bundle of documents. The bundle of the applicant was marked as “A” pages 1-14. The bundles of the respondent were marked as “R” page 1-83 and “R1” pages 1-6. The representative of the respondent and the applicant did not dispute the authenticity of the content of the bundles submitted.
   Applicant’s evidence and arguments
   The applicant, Zanele Dyantyi, Educator at Post Level 1 at Chrestway Secondary School, after having been sworn in, testified as follows:
8. She stated that in 2024 she was put on the excess list at the Cape Academy as the Principal said due to low numbers of learners it was decided to put her in excess. It was discussed with her, and it was done in a staff meeting. It was decided that she is the one that must go and she went to the union as the process was not fair. The union was present at the meeting with the Circuit Manager where the numbers of learners in 2024 was low and eventually she was put on the transfer list.
9. The applicant testified that she got offers from other schools like Maitland High School and an email was sent to her, but she only received it in 2025. The email can be seen on page 57 of bundle “R”. On pages 3 and 4 of bundle “A” she responded to the email. Naidoo told her to enquire from the Department of Education, and she sent an email on 19 February 2025 as can be seen on page 4 of bundle “A”. It states: “Good day, Ms. An email came in to me, and I am not sure of you received one as well. It indicated a post at Maitland High School. They need an answer by 12 today. Post for January 2025. I am enquiring from the district why your name is still on the list. When I had an agreement with the district, you will remain with CAMST when I take extra learners, and we have”. On pages 58-64 of bundle “R” the applicant received offers from different schools but based on what Naidoo said she did not take the offers.
10. On page 1 of bundle “A” she received the second letter dated 21 November 2025 and it states that the district went through a matching and placement process following the issuance of the 2026 education establishments. The applicant was informed that a position of Post Level 1 at the below schools has been identified in line with her profile. 1. Mitchell Plain High School-Offer made 19 November 2025; 2. Crestway High School. The applicant was also told that she must complete and email the response of the acceptance of the post by Wednesday, 26 November 2025 for 2026. The applicant signed on 25 November 2025 and emailed her acceptance of Chrestway High School. According to the applicant there was no time to make representations regarding decline or take the post. She was just told to sign it.
11. The applicant indicated that she took the offer at Chrestway High School under the pretention that IsiXhosa will be introduced in 2026. On 7 November 2025 the school sent an email to the applicant telling her that IsiXhosa will be introduced in 2026 as a first language for Grade 8 and it was sent by Cheryl Jacobs. She was given at school a mixed class in January 2026 in IsiXhosa grade 8 and 10. The learners were IsiXhosa and Afrikaans mixed and she asked where the IsiXhosa classes are. The school did not have the numbers to join IsiXhosa. The principal asked learners who want to join the IsiXhosa class and there was not a lot to change from Afrikaans to IsiXhosa.
12. The applicant stated that on page 56 of bundle “R” is a letter she received from CM Jacobs and she states: “However, during classroom observation, I observed that IsiXhosa was not being taught, instead, the lesson focused on exam question-answering techniques. In the follow-up discussion, Ms Dyantyi explained that many learners were reluctant to continue with IsiXhosa as many of them are not IsiXhosa language speakers”. The learners must be able to speak IsiXhosa and there were only five (5) IsiXhosa speaking learners and two (2) coloureds. Then the applicant taught Life Orientation for grade 8 and 9 at the school.
13. The applicant testified that she is not qualified to teach Life Orientation as she only took it as a subject up to her third year. She is a specialist in IsiXhosa and Technology and she chose the school as CM Jacobs said that they would introduce IsiXhosa in 2026 and not a lot of learners wanted to join in 2026. The applicant therefore joined the school under false pretences. Life Orientation is presented in English and Afrikaans, and the medium of instruction at the school is mostly English and in some classes Afrikaans. She was told in the second letter to her from the school that they will have IsiXhosa in 2026 and it matches her skills and experience.
14. Under cross-examination she confirmed that she was not part of the process of declaring her in excess. She accepted that a staff meeting was called and the staff compliment for 2025 was shown. It states on top of bundle “R” on pages 42 to 45 under the heading of The Cape Academy of Mathematics, Science and Technology: Educator stats used to identify the excess post as per Circular 25. The applicant said that it is the first time she sees the document, and she only once saw the staff establishment. She disputed that she was aware of the information and that the SMT would come and guide and identify the post level and the post.
15. The witness confirmed that her signature appears on page 36, but it is the attendance register about the staff establishment of 2025. She was told that she was part of all the meetings regarding the Collective Agreement and the view of educators, and the applicant said there was no discussions about it. On page 70 of bundle “R” in B 6.5.8 it states the opportunity to make representations must be given to the educator before a school governing body recommends the transfer of such educator to their school. On 23 November 2025 the applicant was called by Naidu, Principal, and she was told about a post in Mitchel’s Plain for an IsiXhosa teacher, and it matches her profile. She told Naidu that she is going to meet about the school in Mitchel’s Plain. The applicant said the union was not part of the meeting and can only be observers.
16. The applicant agreed that she was provided with multiple offers of schools and she chose the school she is in now. She is aware of the email on page 1 of bundle “R1” that was sent to her, and the offer is IsiXhosa and Life Orientation, but the applicant said it was only IsiXhosa. The applicant was referred to pages 3 to 4 in bundle “A” where she did not accept the offer, and she answered regarding the post. It was a conversation between her and the principal as page 3 was a WhatsApp and page 4 an email. The email states: “I would like to request for the agreement you had with the department as I received an email about the post for another school. I would also like to know if Ms Isaacs responded to your emails about removing my name from the list”.
17. On bundle “R” she received the letter that she was in excess, and she was asked whether she signed it under duress on page 41 and she said that she recognised the letter and received it on 24 November 2025 and she signed it voluntary. She agreed again that she declined multiple offers and was put at Chrestway Secondary School. In the Collective Agreement clause B 6.5.3 was read into the minutes and it states: “The employer shall provide a list of vacancies and their profiles from which the educator additional to the post establishment would, as per the agreed management plan of the respective provincial department, make a choice relevant to his/her profile for transfer”. The representative of the respondent said that the Department has complied with the Collective Agreement.
18. It states in B.6 in annexure “A” under transfer of serving educators in terms of operational requirements in B 6.1 Operational requirements for education institutions are based on, but not limited to the following: B.6.1.1 Change in learner enrolment; B,6.1.2 Curriculum changes or a change in learners’ involvement in the curriculum; B.6.1.3 Change to the grading or classification of an institution; B.6.1.4 Merging or closing of institutions; B.6.1.5 Financial constraints. The representative stated that it was well within the duty of the school to allocate Life Orientation to the applicant. It states in B.5.4 that in the event the educator fails to make a choice, the employer reserves the right to make a choice on behalf of such educator. The applicant stated that she had problems with her children, but the employer had the right to place the applicant.
19. On page 4 of bundle “R1” the address is 39595 Makhasa and it is the WCED address and not her own address. On page 71 of bundle “R” it states in B.6.9.1.3.4 the educator’s situation of childcare or care for family member and in B.6.9.1.3.6 the fact that an educator who has been declared in addition must be transferred to another place of work. The representative stated that the applicant was placed in the same district. On page 44 of bundle “R” it states that the applicant is not qualified to teach Life Orientation but at The Cape Academy she teaches Life Orientation.
20. Under re-examination on page 70 of bundle “R” it states under B.6.5.7 that: “In the event none of the educator’s choices in terms of paragraph B.6.5.3 can be realised; the employer must first give the educator an opportunity to make written representations e.g. personal circumstances about the intended transfer to that specific school within 5 working days before a final decision is made”. The applicant received multiple offers from various schools. The applicant stated that she was not given an opportunity to give written submissions by the respondent. Respondent’s evidence and argument
    The first witness of the respondent, Angie Naidu, Principal at The Cape Academy, after having been sworn in, testified as follows:
21. The witness stated that the applicant was appointed as an educator at their school since 2015 for about 10 years. The applicant taught Grades 8 to 12 in Technology, Life Orientation (two years) and IsiXhosa. She stated that pages 34 to 36 of bundle “R” is the minutes of a staff meeting and on page 36 is a register of attendance in this meeting and the applicant was present as number 9. Pages 42-44 of bundle “R” is the educator statistics and identified educators in excess and all educators in levels 1-4 was used. The applicant is a level 1 teacher and two teachers with the lowest number as on page 44 was identified and the applicant was placed in excess.
22. The criterium that was used was the lowest number of learners in the classes. On pages 38 and 39 of bundle “R” is the details of a meeting to inform the applicant that she will be placed in excess. The letter was received from the Circuit Manager on 16 October 2024. During the meeting the identification and out of the names the name of the applicant was sent as in excess, but if the number of learners increase in 2025, she will return to her post. The applicant was chosen to be placed in excess as she had the lowest number of learners in her class. The figures on page 44 were explained in detail by the first witness. She only had 84 learners and the impact was 15%.
23. On page 46 of bundle “R” is the Educator Survey as part of the job description to be completed by the applicant. Page 40 to 41 was sent to the first witness on 21 November 2024. Offers were made to the applicant for placement at two schools and the applicant accepted the offer at one and sent it back on 25 November 2025 for 01 January 2026. On page 57 to 64 of bundle “R” is all the emails about the different interviews and declines of offers from schools since 12 December 2024. Maitland High School requesting the applicant to join them plus subsequent emails for offers as she was on the excess list.
24. On pages 3 to 4 of bundle “A” the witness explained that it was a WhatsApp from her to the applicant on 19 February 2025 regarding the post at Maitland High School. On 13 December 2024 an email was sent to the applicant. The school is in Makhasa and the applicant stayed in Tokai. The witness stated that the applicant started at The Cape Academy in 2015 for 10 years and the witness arrived in 2017 and she did not know why the applicant was leaving. The timeframe of the offers for the applicant was from 12 December 2024, and the last one was on 21 November 2025. The witness mentioned that the processes followed with the applicant was fair. Under cross-examination so far, no question was asked and the arbitration was postponed due to the weather in Cape Town. On 03 August 2026 the applicant was in detail cross-examined and re-examined.
25. Under cross-examination the first witness confirmed that she started in her position on 12 January 2026. She was referred to pages 42 to 43 of bundle “R” and Mr J Meyer was on 16 % as can be seen on page 43 on the percentage of learner taught and why was he not included when the transfers were discussed. He was the acting HOD and only Level 1 educators was considered. Barnes was on 19% and Meyer on 16% and the applicant on 15% and the witness stated that development is teaches separately from the other post level 1 educators. Protected posts are beyond the normal staff establishment as it is specialised protected posts. The witness stated that the applicant was the least impacted at the school on the total number of learners. She taught her home language plus one additional language. She confirmed that she is aware of the language and Education Policy. All the scoring was well above 23% except the applicant based on learner population and not based on teaching IsiXhosa.
26. The witness further stated that the applicant arrived at the Cape Academy School in 2017 and the school is still offering IsiXhosa, but the school hired an SGB educator to teach the subject. She did not apply to WCED to return the services of the applicant as she was not aware that she could do that. On page 70 of bundle “R” in the Collective Agreement regarding the transfer of educators it states in B.6.8 that the time period of 36 months referred to in paragraph B.6.4. Will not negatively affect the creation and/or filling of posts. It was put to the witness that she could have applied for the applicant to return to her previous school, but she did not. The witness was reading through the Collective Agreement and the process of transferring educators can be seen on page 69 under B.6.4.2.4 and it states: “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”. The applicant had ten years of service and Barnes seven years, and the school had to apply the principles as Barnes has to be declared in excess. The witness said that they could not use LIFO on Barnes.
27. The learner number increases in 2025 in Cape Academy and it is now standing at 630 but there is no allowance for an additional post to be created. In bundle “A” on page 4 on 14 February 2025 the applicant enquired about a post at another school. The applicant declined excess after the SGB was told about it, they approved it. Should she had received the applicant’s presentation not to be transferred from Cape Academy, but she did not receive a written letter from the applicant it would be treated different. She said that she knows where Makasa is but was not aware it was 50 km away. The school did not follow up on putting the applicant on the transfer list.
28. Under re-examination on page 34 to 37 in bundle “R” the main reason for putting the applicant in excess was that there was an SMT and staff meeting and the staff establishment appears on page 34. The minutes used the allocations to identify post level 1 educators and then steps were used as on page 35. In the Circular of 24/25 Circuit Managers meeting the educators were informed. During the staff meeting on 09 September 2024 the attendance list appears on pages 36 to 37. On page 42 of bundle “R” the number of classes was identified according to B.6.4.2.2 to identify teachers in excess. On pages 57 to 64 of bundle “R” it indicates that the applicant received offers before she was placed at Chrestway High School. The applicant did not accept any of the offers, but she did not give any reasons. The school considered the curriculum obligation at the school. Second witness of the respondent, Akeda Isaacs, retired in February 2026 as former Circuit Manager testified as follows:
29. The witness confirmed that the applicant was an educator at the Cape Academy in Circuit 7. The Circuit Manager received staff establishment, and he decided who is in excess and the principal can give the letter to the relevant person. On pages 23 -31 of bundle “R” is the grievance form completed by the applicant and it was received late in October 2024. The grievance report is at page 29, and it was heard on 15 November 2024, and the applicant was still in excess. The role players involved were the principal and the Circuit Manager in a final meeting. On pages 40 to 41 is a letter to the applicant regarding transfer matching and placement of educators and the applicant signed it on 21 November 2025 and there was given enough time to sign it, as the applicant was given five (5) days to sign it and it was done one day before the five (5) days expired. No additional time was requested.
30. Pages 34 to 37 and 42 to 45 of bundle “R” was about the staff meeting and the criteria was fully explained, and the criteria would be learner total, the curriculum, and Maths and Science as subject at the school. On page 36 it can be seen that the applicant was present at the meeting and signed on page 36. On pages 57 to 64 of bundle “R” it can be seen that the applicant was given offers before placed in excess and it was made available to the school and they reacted. The applicant did not accept any of the other offers except for Chrestway High School. The applicant did not mention any personal challenges to the witness when she met with the applicant on 10 October 2025 and nothing was also mentioned in the grievance meeting.
31. Under cross-examination the witness confirmed that she did the whole process of transfer at the Cape Academy and the school focussed on Maths and Science as subject. She stated that languages are sure as subjects offered in English and Afrikaans and in 2025 the school has IsiXhosa as first additional language. To be declared in excess the priorities will be learner totals and curriculum needs as well as Maths and Science as subjects. Two languages plus the other subjects offered at the school. The school has promoted IsiXhosa at the school through the years and they were not against the mandate of the WCED. Excess is based on the principles of the Collective Agreement. The witness stated that the applicant was teaching IsiXhosa in 2025 subject to the close down of the subject. The argument is that she wanted to teach Grade 11 and 12 learners at another school in IsiXhosa in 2026.
32. In October/November 2025 the school went into partnership with a soccer club, and they offered to pay 50% of an educator’s salary for a contract teacher. In the Collective Agreement on page 70 of bundle “R” at B.6.8 it states the time period of 36 months referred to in paragraph B.6.4, will not negatively affect the creation and/or filling of posts, the grading of schools or any other personal related matter, in terms of relevant and applicable provisions, during the period. The way it is done did not happen to the applicant as conditions in the agreement were not the same as the conditions at the school. The applicant was placed in excess in 2024, and she only left in 2025 as she was an extra 18 months at the school. She further stated under cross-examination that the district received the recommendation from the Cape Academy as well as the excess transfer list. The applicant went for interviews in 2025, and she did not accept the offer at Groote Schuur.
33. Under re-examination the second witness explained again the whole process that was followed as excess of the applicant started in 2024 and the process was followed according to the principles of the Collective Agreement. The witness came in and completed the process and there were formal meetings with staff and a decision was taken which posts were in excess. Maths and Science were prioritised as well as learner totals. Third witness of the respondent, Sheryl Jacobs, Principal at Crestway High School testified as follows:
34. The witness stated that she was appointed as Principal since 2023 and the applicant started at the school in January 2026. They had a vacant substantive post for an educator to teach IsiXhosa and they first had to consult the excess list before they advertised. They identified the applicant on the excess list to fill the vacancy. After the applicant was identified they called a SGB meeting to inform them that they have a possible suitable candidate and they contacted the school (Cape Academy) to determine the availability of the applicant via email. The content of pages 1 and 2 of bundle B was read into the minutes of this arbitration dated 04 November 2025. It was forwarded to the applicant, and she enquired whether IsiXhosa is going to be presented for Grafe 12 learners.
35. On 07 November 2025 at 10:25 there was an email from Crestway High School thanked the applicant for her email and stating that IsiXhosa will be introduced in 2026 as a first additional language for Grade 8 learners. The applicant did not accept the offer, but she was aware that IsiXhosa will be introduced in 2026 as first additional language. The Crestway High School sent a letter to Mr Agulhas regarding the applicant and stated: “Ms Dyantyi was identified as a suitable match as she offers IsiXhosa as well as Life Orientation. On 28 November, I received a match and place confirmation email from the circuit manager, indicating that Ms Dyantyi accepted the position at Crestway. At the start of the 2026 academic year, I attempted to accommodate Ms, Dyantyi by recruiting Grade 8 and Grade 10 learners to offer IsiXhosa FAL. The school timetable was changed to accommodate the two Grades 8 and two Grade 10 IsiXhosa FAL classes. During classroom observation, I observed that IsiXhosa was not being taught; instead, the lesson focussed on exam question-answering techniques. In the follow-up discussion, Ms. Dyantyi explained that many learners were reluctant to continue with IsiXhosa as many of them are not IsiXhosa language speakers. I informed Ms. Dyantyi that the current arrangement was not sustainable, and I informed the staff and SGB that the timetable and subject allocations would need to change to offer Afrikaans FAL to the four affected classes, and that IsiXhosa FAL would instead be incorporated into Crestway’s 2027 curriculum package. Ms Dyantyi agreed to teach Life Orientation for Grade 8, 9 for 2026. The revised allocation/timetable was implemented on 23 January 2026”.
36. Under cross-examination the witness confirmed that the applicant did not apply for extension, and she had accepted the offer made to her on 28 November 2025 at Crestway High School to teach IsiXhosa and Life Orientation. The applicant was accepted due to Life Orientation and a suitable match as the post will be Life Orientation and IsiXhosa. In November 2025 the principal informed the parents that they are going to introduce IsiXhosa in 2026 and the parents were excited. The applicant told the principal that the learners were Afrikaans speaking and not conversant in IsiXhosa. On 28 November 2025, Mr Agulhas said that the applicant will accept the offer. The applicant wanted to go back on the excess list, but this can only happen when the educator is on the excess list, but the applicant was at that stage no longer on the excess list.
37. Under-re-examination the witness was referred to the bundle B page 2 regarding the email on 07 November 2025, and the applicant was aware that IsiXhosa will only be presented in 2027. Fourth witness of the respondent, Mark Agulhas, Circuit Manager, Circuit 3 at Metro South
    testified as follows:
38. The witness stated that he was appointed as Circuit Manager since 01 June 2025 before the applicant joined Crestway High School. In bundle “B” page 2 the applicant was made an offer, and the applicant did not accept. In December 2025 a letter was issued to the applicant that she matched the subjects and offered a new letter and the applicant accepted. The letter from Crestway High School on page 56 of bundle “R” was again read into the minutes of the arbitration hearing and it was signed by Sheryl Jacobs. The school tried to accommodate the applicant to teach Life Orientation and IsiXhosa, but it did not work out, and they gave her more Life Orientation classes and stated that IsiXhosa will be introduced in 2027. The applicant met with him, and she indicated that her understanding of Afrikaans is limited.
39. Under cross-examination the witness confirmed that the applicant is not teaching IsiXhosa at school but only Life Orientation. It is the case of the applicant that she was offered a position to teach IsiXhosa and Life Orientation and only taught Life Orientation. Her match and placement were correct as she accepted Life Orientation and IsiXhosa. Due to the situation that most of the learners are not IsiXhosa speaking she could not present IsiXhosa in 2026. It was however promised that IsiXhosa will start in 2027. The witness admitted that he received a copy of the letter on page 56 of bundle “R” and the applicant requested to go back on the transfer list and she is welcome to asked for a transfer as it is different from the excess list.
    Closing arguments
40. The applicant and respondent sent written closing arguments on 11 August 2026, as agreed on 29 July 2026. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award. Analysis of evidence and argument
41. It is common cause that the applicant was previously employed at the Cape Academy as from 2014 to 2025 as a IsiXhosa language teacher for all grades (grade 8-12). The applicant was transferred to Chrestway High School in terms of the Collective Agreement 4 of 2016. The applicant accepted the transfer on the basis that she would be teaching IsiXhosa, but on arrival at the school she was told there were not sufficient learners, and she is now teaching Life Orientation in English for grade 8 and 9 learners. It is also noted that whilst the language of teaching is English, the learners are predominant Afrikaans speaking. The school further indicated that they would seek to increase IsiXhosa in 2027.
42. It is noted that the applicant accepted the position and the transfer on the basis that she would be teaching in IsiXhosa, and that the department did not honour the terms of the transfer, as the transfer in 2025 for 2026 does not match her skills and experience. According to the applicant the department therefore did not complying with the terms of the Collective Agreement.
43. The dispute has been referred and categorized as a dispute about the interpretation and application of Collective Agreement Number 4 of 2016 and whether the applicant’s transfer of serving educator in terms of operational requirements was fair. The dispute was scheduled for arbitration in terms of section 24 of the Labour relations Act 66 of 1995 as amended (“the LRA”) as an interpretation and application of a collective agreement.
44. Part C of the ELRC constitution establishes internal dispute resolution procedures for the interpretation, application and breach of collective agreements, as required by section 24 of the Labour Relations Act.
45. The Western Cape Education Department (respondent respectfully submits that the applicant, SADTU obo Ms. Z Dyantyi, has failed to prove on a balance of probabilities, that Collective Agreement 4 of 2016 was unfairly and/or incorrectly applied.
46. The onus rests on the applicant to present clear and persuasive evidence demonstrates that the respondent. Interpreted and acted unreasonable, free or inconsistent with the intent and purpose of set agreement. The evidence led by the applicant did not meet this burden of proof and in contrast, the respondent’s evidence was credible, reliable and sustained by credible witnesses. This means documentary evidence, and compliance with the provisions of Collective Agreement 4 of 2016. When considering as a whole the evidence and probabilities favored the respondent’s version for the reasons set out below.
47. As indicated earlier, the respondent relies on ELRC Collective Agreement No 4 of 2016 dealing with the transfer of serving educators in terms of operational requirements. Clause B.6.1 recognizes operational requirements arising from: “Change in learner enrolment” (B.6.1.1) and “Curriculum changes or a change in learners’ involvement in a curriculum” (B. 6.1.2). The evidence of the Principal and Circuit Manager of Crestway High School falls squarely within these provisions.
48. Furthermore, clause B.6.2 provides: “The new staff establishment may provide for fewer posts than the existing staff establishment, or the skills requirements of the new establishment may not match the skills profile of the incumbent educators. As a result, some serving educators may be in addition to the new establishment”. This is precisely what occurred in the present matter according to the representative of the respondent.
49. According to the submissions of the respondent, the evidence before the Commissioner indicates that the applicant wishes to continue working in a Mathematics and Science Focus School environment, remain in her preferred geographical area, and ultimately return to Cape Academy. While the respondent is sympathetic to the applicant’s personal circumstances and preferences, these considerations do not create enforceable legal rights. The respondent submits that personal preferences cannot supersede the operational requirements of the respondent, which must be considered and managed in the broadest interest of service delivery and noting the needs of this focused school.
50. Commissioner, the evidence before you support and tips in favour of the respondent. The applicant was correctly declared in excess in accordance with ELRC Collective Agreement 4 of 2016, followed a lawful and fair process driven by operational requirements, learner enrollment figures, curriculum needs, and approved staff establishment.
51. The respondents witness provided credible, consistent and corroborated evidence demonstrating that the applicant was afforded every reasonable opportunity throughout the matching and placement process. She was presented with placement alternatives, exercised a choice between schools, voluntarily selected Crestway High School, and accepted her placement with full knowledge that the introduction of IsiXhosa FAL remained subject to departmental approval and future learner demand.
52. The evidence also established that there was no funded IsiXhosa post available at Crestway High School within the approved staff establishment and that the Department could not create or allocate a post that did not exist. In the circumstances, the applicant has failed to discharge the onus by proving that the respondent incorrectly interpreted or applied Collective Agreement 4 of 2016. The probabilities, documentary evidence, and witness testimony all favour the respondent. Arguable, the respondent respectfully submit that the claim of the applicant be dismissed and its entirety and that the Commissioner rule in favour of the respondent.
53. Both witnesses of the respondent also testified that the applicant was aware, prior to her appointment at Crestway High School, that the introduction of IsiXhosa FAL was planned for 2026 and remained subject to departmental approval. Further evidence established that the applicant was appointed to teach both IsiXhosa and Life Orientation, that she is qualified to teach Life Orientation, and that she previously taught the subject at Cape Academy. Consequently, the allegations made by the applicant’s representative that she was not qualified to teach Life Orientation are not supported by the evidence presented. In addition. Mr. Agulhas testified during the cross-examination by the applicant’s representative that the applicant was offered the opportunity to teach Technology, a subject in which is also qualified to teach. Applicant declined this opportunity. The evidence therefore demonstrates that the school made every reasonable effort to accommodate the applicant within its operational requirements and available teaching needs.
54. It is the submission of the representative of the applicant that Ms. Z Dyantyi, the applicant, respectfully points out that the heart of this dispute lies in how ELRC Collective agreement No 4 of 2016 is applied and interpreted, especially regarding the rules for identifying, matching, and transferring educators who have been declared in excess of the staff establishment. With around 11 years of teaching experience, the applicant has spent nearly a decade at the Cape Academy for Mathematics, Science and Technology (CAMST). Her main teaching focus is IsiXhosa First Additional Language (FAL) for Grades 8 to 12, and she also has some experience teaching Grade 8 Life Orientation.
55. The applicant acknowledges that the WCED initiated a process to transfer current educators due to operational requirement needs and financial limitations. However, the main issue at hand is whether this process was implemented fairly and appropriately in her case, and if her eventual placement at Crestway Secondary School was in line with the collective agreement while considering her skills and experience. Collective Agreement 4 of 2016 outlines the transfer process for serving educators based on operational needs. This agreement specifically pertains to educators employed by the employer and was established under the ELRC’s guidance.
56. In the case of Western Cape Department of Health versus Van Wyk and others (2014) 35 ILJ 3078 (LAC), the Labour Appeal Court emphasized that a collective agreement should not be viewed as just another private contract. Its goals, intentions, and all terms must be considered, and its interpretation and application should be fair to all parties involved.
57. The principle is especially crucial in this case because it seems the respondents focus was primary on the fact that the applicant was identified as an excess educator, rather than genuinely assessing whether the subsequent placement met the standard set out in a collective agreement. The aim of Collective Agreement 4 of 2016 goes beyond simply relocating an educator from one school to another. The document outlines a straightforward procedure for handling cases where educators cannot be accommodated within a particular institution, ensuring there are protections in place regarding their reassignment. A crucial point in this context is B.6.5.1, which specifies that any new position must be in line with the educators’ skills and experience. This requirement is vital when it comes to placing an excess educator.
58. The High Court in the case of Governing Body of Thuthukani Special School and Another versus MEC for Education, KZN and Others [2022] ZAKZPHC 44 examined Collective Agreement 4 of 2016 and specifically noted the necessity for an excess educator to be transferred to a role that corresponds with their skills and experience. The more appropriate question is: “Was Ms. Dyantyi placed in a position that truly matched her skills and experience as outlined in Collective Agreement 4 of 2016? The evidence backs up the applicant’s claim that the answer is no. A key issue here is the difference between IsiXhosa First Additional Language (FAL) and IsiXhosa Home Language (HL). The applicant has experience teaching IsiXhosa (FAL). The evidence shows that. FAL and HL are distinct curriculum offerings, each with its own learner profiles and teaching requirements.
59. The applicant argues that the respondent cannot fix a skills mismatch by assuming that just because an educator teaches a language as FAL, they are automatically qualified and experienced enough to teach that same language as a Home Language at the FET level. The applicant contends that the respondent’s method prioritizes administrative ease over the proper alignment of educator skills with student’s needs.
60. The applicant agreed to the Crestway placement with the understanding that the school would start offering IsiXhosa FAL in 2026, a point confirmed by the principal, Mrs. C Jacobs. Thus, the applicant accepted the placement based on a clear understanding that IsiXhosa FAL would be introduced. On 04 December 2025, the school finally got the green light about the curriculum extension. However, by that time, the timetable and subject assignments were already set. This detail is crucial because it shows that the applicant’s placement was not based on a confirmed IsiXhosa FAL position that matches her skills and experience. Instead, she ended up at school where her main area of expertise was not even offered. The applicant argues that this placement does not meet the substantive requirements of B.6.5.1. The average evidence regarding CAMST is just as significant.
61. The applicant’s argument is that Collective Agreement 4 of 2016 should have been applied with this reality in mind. She specifically points to B.6.4 and B.6.6 of the collective agreement, and claims that the respondent did not adequately consider whether she could still be accommodated while the subject was being phased out. This is especially compelling since evidence later showed that CAMST continued to accept IsiXhosa learners in 2026. The applicant argues that Collective Agreement 4 of 2016 should have been implemented with a clear understanding of the situation at hand. Ultimately, the school hired an educator funded by the SGB to teach IsiXhosa, with the soccer club covering half of the salary and the SGB taking care of the other half. This evidence clearly showed that there was still a genuine need for IsiXhosa teaching at CAMST.
62. The current case resolves around this very issue whether the applicant’s placement adheres to the agreement. The applicant places before the Commissioner about the significant financial impact her transfer would have. Currently, the applicant rents a place in Makaza but lives on the CAMST premises. Her children go to Swaabswyk Academy, which is about 47 kilometers away from Makaza. This means she must travel roughly 50 kilometers each way when commuting between her children’s school and Crestway. In total, this adds up to around 100 kilometers of travel daily, about 500 kilometers weekly, and nearly 2000 kilometers monthly. The applicant argues that Section B.6.9.1.3.4 and B.6.1.3.5 of Collective Agreement 4 of 2016 necessitates a thorough consideration of such circumstances.
63. A fair process demands that all relevant circumstances be considered, rather than simply placing someone based on the mere existence of a vacancy. The evidence shows that on 7 November 2025, the applicant expressed her refusal of the offer, but by 28 November 2025, she had signed a confirmation to be transferred to Crestway High School. More importantly, even if the Commissioner concludes that the applicant did accept the placement, that acceptance does not fix the significant failure to adhere to Collective Agreement 4 of 2016. The evidence shows that Crestway Secondary School is only expected to offer IsiXhosa in 2027. As a result, the applicant currently finds herself in a school where her main subject, IsiXhosa FAL, is not being offered in the way she anticipated when she accepted the placement.
64. It is further concluded that she was taken out of CAMST, where she had about 10 years of experience and where IsXhosa was still relevant to students and placed in a school where her core subject is not available at all. In the case of Western Cape Department of Health versus Van Wyk, the Labour Appeal Court highlighted the importance of considering the purpose and all terms of a collective agreement, ensuring that interpretation and application are fair. The requirements for the post to align with the educators’ skills and experience serve a clear purpose, to ensure that an educator who is displaced for operational reasons is placed in a role where their existing professional skills can be effectively utilized.
65. The applicant respectfully argues that she has demonstrated, on a balance of probabilities that the respondent failed to properly implement Collective Agreement 4 of 2016 regarding her placement. Specifically, the applicant has relevant experience in IsiXhosa FAL for Grades 8 to 12; 2. The job offers she received include positions that did not match her declared skills and experience; 3. An IsiXhosa home language position is not automatically equivalent to her IsiXhosa FAL experience; 4. When the applicant accepted the placement, Crestway Secondary School had not confirmed an IsiXhosa FAL offering; 5. Ms. Jacobs’ evidence supports the fact that the arrangement was ultimately not sustainable; 6. CAMST continued to have IsiXhosa learners in 2026 and eventually hired an SGB educator to teach the subject.
66. The applicant’s personal and financial situation were important factors under the collective agreement. The applicants respectfully argue that this case is not simply about an educator who refuses to accept the decision because she wants to stay at her original school. It is about whether the applicant was assigned to a position that truly aligns with her skills and experience. It is about whether the curriculum needs of the students were adequately considered. It is about whether an experienced IsiXhosa FAL educator was taken out of a school where IsiXhosa was still important, only for that school to later hire someone else to teach IsiXhosa. And it is about whether the respondent’s decision was in line with the goals and protections outlined in Collective Agreement 4 of 2016. Applicant believes the evidence clearly shows that it was not.
67. Therefore, the applicant respectfully asks the Commissioner to determine that the respondent did not properly interpret and apply Collective Agreement 4 of 2016 regarding the applicant’s transfer and placement. The applicant also requests appropriate relief that will direct the respondent to reassess her placement in line with Collective Agreement 4 of 2016, taking into careful consideration the following: 1. Her qualifications, skills and experience; 2. A background in IsiXhosa FAL; 3. The actual curriculum offerings at the school; 4. The ongoing IsiXhosa curriculum needs; 5. The interest and educational needs of the student; 6. Her personal circumstances.
68. Disputes over the interpretation or/and the application of Collective Agreements in the ELRC are guided by Section 24 of the Labour Relations Act. If parties disagreed on a clause meaning on implementation, the issue goes to the ELRC for conciliation and if unresolved to arbitration. Section 24 of the LRA requires every collective agreement to have a dispute resolution mechanism. The ELRC handles these for the Public Education Sector. The matter proceeds to arbitration where the Commissioner issue a final, legally binding award. An ELRC arbitrator does not have jurisdiction (legal authority) to decide exactly where a teacher should be transferred. Choosing the school remains the employer’s choice (WCED).
69. Based on the rules of the ELRC Collective Agreement No 4 of 2016 and the LRA, if an educator in the Western Cape accepted an operational transfer on the explicit condition that they would teach IsiXhosa as subject, but the school has instead assigned her to teach Life Orientation, the educator is facing a mismatch between their professional profile and actual school placement. A dispute regarding this situation can be approached through two primary avenues at the ELRC. The one referred to the ELRC is the interpretation and application route (Flawed Matching Profile). Under Collective Agreement 4 of 2016, the WCED is required to strictly match an excess educator to a vacant post based on the curriculum needs of the school and the educator’s specific subject, in this case IsiXhosa. No financial compensation or force the school to change its curriculum layout. As arbitrator I can only rule on whether the agreement was broken and potentially order the department to re-do the matching process correctly. I find the agreement between Chestway High School and the applicant was broken as she could not present IsiXhosa in 2026 and that was the reason she accepted the transfer.
70. Considering the above I make the following award.

AWARD

71. The first respondent, Western Cape Education Department (WCED) did not properly interpret and apply Collective Agreement 4 of 2016 regarding the applicant’s transfer and placement. I further order the respondent to take appropriate relief that will direct the respondent to reassess the applicant’s (Ms. Z Dyantyi) placement in line with Collective Agreement 4 of 2016, taking into careful consideration the details as presented in paragraph 67. If needed transfer the applicant to the appropriate school where she can teach IsiXhosa.
72. There is no order as to costs.

Signature:

Panelist: Gert van der Berg
Sector: Education Department