Arbitration Award

Commissioner: Gerald Jacobs
Date of Award: 13 June 2024

In the matter between:

NAPTOSA obo Mofokeng, Xatyiswa
(Applicant)

And
Education Department of Western Cape
(Respondent)

Details of Hearing and Representation

1. This is the award in the arbitration between , the applicant, National Professional Teachers’ Organisation of South Africa on behalf of Ms Xatyiswa Mofokeng, and the Western cape Education Department, the respondent.
2. The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 186 (1) (b)(ii) of the Labour Relations Act, 66 of 1995 as amended (“the Act ”) and the award is issued in terms of section 138 (7) of the Act.
3. The arbitration hearing took place on 22 April 2024, 15 May 2024 and 24 May 2024. The hearings took place remotely, by video, using the Zoom and Microsoft Teams platforms. Unfortunately, there were rather more technical difficulties during this hearing than is now common when using these platforms. There is no need to go into details because they were all eventually overcome, but a good deal of time was lost as a result. Additionally, the arbitration held on 22 April 2024, was postponed in order to provide the parties with an opportunity to resolve the dispute outside the ELRC. Regrettably, they were unable to reach a mutually agreeable solution. Consequently, the proceedings resumed on 15 May 2024, and concluded on 24 May 2024.
4. The applicant was present and was represented by an official of her union, O T van Niekerk. The respondent was represented by Mr Glen Jansen, the Employee Relations Officer for the Western Cape Education Department.

The issue to be decided

5. The dispute is whether the applicant had a legitimate expectation, as granted by the circulars and collective agreements, of being converted to permanent employment without having to reapply for the position. Not converting her amounted to an unfair dismissal under 186(1)(b)(ii) of the Labour Relations Act.
6. The relief sought by the applicant is that Miss Mofokeng be reinstated to her previous position at Jonga High School.
7. That she receives back pay from January 2024 onwards (after her contract was not renewed at the end of December 2023).
8. That her employment status be converted from a contract/fixed term position to a permanent position.

Background to the dispute

9. The relevant facts are not in dispute. In 2022, the respondent advertised a vacancy at Jonga High School in George for a contractual educator, Post Level 1 position, teaching the subject tourism to grade 10 and 11 FET phase at Jonga High School in George. The duration of the fixed term contract was for the academic year. The applicant was successful and was appointed in May 20222. Her monthly salary including benefits was R36,378.98.
10. During November 2023, the substantive vacant tourism educator position that the applicant had been contracting in was advertised by the school. The applicant was informed by the principle, and she applied for the position. The applicant was shortlisted and informed that the interviews for the position at the school would be conducted on 15 January 2024. The applicant attended the interview and the following day, the principle in an email address to the applicant, informed her that she was unsuccessful, and another candidate was selected over her for the role. The email reads as follows:
“Dear Ms. Mofokeng
Thank you for your interest in the position of teacher – Tourism – at Jonga High School, and for taking the time to speak with us about your qualifications and interest in the post.
We had a number of other candidates for this position and our decision was a difficult one. We have selected another candidate who matches our requirements for the position at this particular time.
We wish you the best in your future endeavors.
Kind regards.”
11. The failure for the applicant to continue in the role led to her union, on 23 February 2024, referring an unfair dismissal dispute to the ELRC. A conciliation meeting was held on 13 March 2024 but the dispute remained unresolved and a certificate to such effect was issued. The applicant, thereafter, requested that the dispute be resolved through. Upon the last day of the arbitration hearing, the parties agreed to submit written submissions instead of closing oral submissions. It was directed that parties were to submit such submissions on or before 31 May 2024 and the 14-days within which to issue the award as required by section 138(7) will be calculated from this date. Both parties submitted their closing arguments.

Survey of evidence and arguments

Documentary evidence:
12. I was provided with bundles of documents by each party and references to page numbers in this award relate to documents within these bundles. Additional documents were added to the bundle by the employer with no objection from the employee and his representative. The applicant’s bundle consisted of the conciliation outcome certificate, the pre-arb minute, applicant’s salary slip, email communication, circular 0028/2023 which expired on 31 December 2023 and the ELRC’s collective agreement 4 of 2018- the appointment and conversion of temporary educators to posts on the educator establishment. The bundle was marked as bundle A.
13. The respondent’s bundle consists of the Recruitment and Selection Circular 0006/2019 and 0036/2022 and the Conversion of Employment of Post Level 1 from temporary to permanent in terms of section 6(b) of the Employment of Educators 0020/2020 which replaces Circular 0006/2019 was marked as bundle B.

Applicant’s evidence and arguments

14. The applicant’s representative, Mr. Van Niekerk, stated that he would not be calling any witnesses to provide oral evidence for the applicant’s case. He decided against presenting oral evidence because he believed that the documentary evidence, including the circulars and collective agreements, was sufficient to support the argument that the applicant had a reasonable expectation of being converted to permanent status. He intended to base his arguments solely on his interpretation of these written documents, rather than relying on witness testimony.

The applicant’s arguments and state case.
15. Mr. Van Niekerk’s submissions regarding the applicant’s expectation of being appointed permanently were based on various circulars.
16. Circular 0028/2023 was the primary circular Mr. Van Niekerk relied upon. He argued that paragraph 5 of this circular clearly stated that all level 1 educators in substantive vacant posts, like the applicant, should be automatically converted to permanent employment as of 1 October 2023. He pointed to clauses 7 to 9, which excluded certain categories such as post level 1 educators employed as substitutes, educators employed at Schools of Skills (managed separately), foreign educators, retired educators, educators who were medically boarded, educators who opted for any type of severance package, and unqualified and underqualified educators (REQVIO—12).

17. In his written arguments, Mr. Van Niekerk further explained that the circular required Heads of educational institutions to ensure the permanent filling of all post level 1 posts through the conversion process. If this process failed, the vacant post level 1 positions had to be advertised in Vacancy List 01/2024. He argued that this instruction was not followed, making it clear that a substantive vacant post should not be advertised in any other way than Vacancy List 01/2024 after all attempts to convert a contract post to permanent had failed. He also contended that the respondent’s interpretation that the circular only applied to educators out of phase and subject was incorrect and should be rejected, as the circular was explicit and left no room for interpretation.

18. According to Mr. Van Niekerk, there are more than 8,000 contract positions at schools. An analysis of the profiles of educators employed on contract confirmed that many post level 1 educators are teaching out of phase and subject. Therefore, the circular clearly indicated that the applicant was among the more than 8,000 post level 1 educators eligible for conversion.

19. Mr. Van Niekerk cited Collective Agreement 4 of 2018, particularly clauses 3, which refer to ILO conventions and the Labour Relations Act concerning the dismissal of employees on fixed-term contracts. Clause 3.3.3 states that section 6B of the Employment of Educators Act allows the Head of Department, after consulting with the governing body of a public school, to convert the temporary appointment of an educator in a post on the school’s establishment to a permanent appointment without the governing body’s recommendation. He argued that this agreement created an expectation for level 1 educators in substantive vacant posts, like the applicant, to be converted to permanent status, as it regulated the conversion of temporary educators to permanent posts and provided them with employment security.

20. Mr. Van Niekerk also referenced Circular 0020/2020, which dealt with the conversion process for temporary to permanent educators under section 6(b) of the Employment of Educators Act. He highlighted paragraph 5, which discussed the discretionary powers of the Head of Department in conversions, implying it supported his stance. He submitted that the Western Cape Education Department (WCED) had adopted criteria for converting temporary educators to permanent positions, including that the educator must have been employed in a temporary capacity for a continuous period of three months.

21. According to him, these criteria created an expectation for all post level 1 educators appointed temporarily in a substantive vacant post to be converted to permanent after a three-month period.

22. Furthermore, he cited Circular 0003/2019, which intended to ensure fairness in the recruitment, selection, and appointment process and that suitably and professionally qualified educators are appointed on contract. These circular allowed institutions to advertise contract posts and follow a fair and objective recruitment and selection process, requiring that vacant posts be advertised within ten days of becoming vacant and the process be documented via shortlisting and interview minutes. This process was intended to support the conversion of educators from temporary to permanent employment. As a result, the circular created an expectation that the post would be converted as the applicant met all criteria for the position to continue until conversion was successful.

23. Overall, Mr. Van Niekerk’s core argument was that the circulars, especially 0028/2023 read with 0003/2019 and 0020/2020, along with Collective Agreement 4/2018, created a legitimate expectation that level 1 educators, like the applicant, appointed to substantive vacant posts, must be converted to permanent positions before vacancies could be advertised.

The respondent case.
24. Mr. Jansen called the principal of Jonga High School as a witness to testify about the interview process for the advertised tourism educator position and to provide direct evidence on how the circulars were applied in this specific case. His testimony was intended to counter the applicant’s claim that she had an expectation of renewal or conversion based on the circulars. Here is the salient parts of his testimony.

Mr Manria Louw
25. He has been the principal of the school for the past four years and heads approximately 43 teachers at the school. He testified that the applicant’s contract expired at the end of 2022, but due to written communication from the department stating that all contract posts must be automatically extended for the 2023 academic year, the applicant’s contract was also extended.

26. He testified that he did not create any expectation of the applicant being made permanent. She applied for the position, was shortlisted, and competed with all other shortlisted candidates. The applicant had been teaching the subject for grades 10 and 11 for almost two years, but another candidate performed better in the interview and was appointed on a one-year contract.

27. He testified that, to his knowledge, there is no circular or collective agreement in existence that requires the school to convert a contract position to a permanent position. The power to convert a contract position to a permanent one lies with the head of the department. He stated that the school implemented Circular 0028 of 2023 and Collective Agreement 4 of 2018 because neither of these documents states anywhere that the applicant must be converted to permanent employment.

28. He testified that the applicant was habitually absent from work due to personal problems. He encouraged the applicant to contact the Employee Health and Wellness Programme (EHWP) for professional support, but she did not do so. Although her personal situation had an adverse impact on her work, it was not the reason she was not appointed.

The respondent’s arguments
29. Mr Jansen submitted in response was that much of the applicant’s arguments were based on their interpretation of the circular. If the applicant wanted to challenge the interpretation of Circular 0028 of 2023, they should have referred the matter to the ELRC for clarification. Instead, they have filed a referral based on an unfair dismissal claim.

30. He submitted further that Circular 0028 of 2023 “Condonation granted for the conversion of post level 1 educators,” is not relevant to this unfair dismissal dispute because it applies to post level 1 educators teaching out of phase and out of subject. The applicant was qualified to teach tourism for grades 10 to 12, meaning she taught ‘in subject’ and ‘in phase.’ Because the applicant taught ‘in phase’ and ‘in subject,’ she is not covered by Circular 0028 of 2023, which only applies to those teaching out of phase and out of subject.

31. He strongly argues that the applicant’s reliance on this circular for automatic conversion is misplaced. Even if the applicant were teaching out of phase and subject, she would not be entitled to automatic conversion because the authority to convert rests with the Head of the Department of Education, according to the collective agreement. Therefore, the respondent could not initiate the conversion process under Circular 0028 of 2023, as this circular does not apply to the applicant.

Analysis of evidence and arguments

32. A fixed-term contract is so named because its duration is set in advance by the parties, which means that when it expires, the parties are automatically released from their obligations. The legislature has outlined circumstances in which employees may claim to have been dismissed when their fixed-term contracts expire. These circumstances are detailed in section 186(1)(b) of the Act, which states that a dismissal is deemed to have occurred if an employee, employed under a fixed-term contract, reasonably expected the employer:
“(b) to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed-term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.”
33. In the present matter, the respondent employed the applicant on a one year fixed-term contract but at the end of the fixed-term contract, the applicant continued to render services to the school. In the meanwhile, the respondent advertised the position, the applicant occupied, and the applicant applied for the position. When she was unsuccessful, and her services terminated her union referred an unfair dismissal dispute to the ELRC claiming that she had a reasonable expectation that she would have been appointed permanently. The applicant bore the onus to prove that she held a “reasonable expectation” of being appointed permanently.

34. Mr. Jansen argued on behalf of the respondent that the dispute was not about unfair dismissal under section 186(1)(b) of the Act, which pertains to the reasonable expectation of renewal for fixed-term contracts, but rather about the interpretation of circulars and a collective agreement, which he claimed did not mandate automatic conversion of the applicant’s contract to permanent employment. I disagree. The primary issue in Mr. Van Niekerk’s case is the respondent’s failure to appoint the applicant permanently, with the interpretation of the circulars and collective agreement being a secondary concern. Mr. Van Niekerk contended that Circular 0028/2023 mandated that all level 1 educators in substantive vacant posts be automatically converted to permanent employment as of 1 October 2023, and that these positions should not be advertised until the conversion process was completed and unsuccessful. The circulars and Collective Agreement 4 of 2018 created a legitimate expectation that the applicant, being a post level 1 educator in a substantive vacant post, would be converted to permanent status. However, the proper procedure was not followed, as the position was advertised contrary to the circular’s guidelines. Van Niekerk’s main argument was that failing to convert the applicant’s contract to a permanent position, despite meeting all criteria, constituted unfair dismissal under the Labour Relations Act, breaching the applicant’s legitimate expectation of permanency.

35. It appears that Circular 0028/2023 does not general confers a right to automatically conversion for all post level 1 educators to be converted to permanent status. Circular 0028/2023 primarily addresses the automatic conversion of post level 1 educators who are teaching out of phase and subject. These educators do not need to undergo a recruitment, selection, and appointment process for conversion; their contracts are automatically converted to permanent positions. For the applicant, who was not teaching out of phase and subject, the school would need to follow the recruitment, selection, and appointment process to fill the position.

36. The automatic conversion process outlined in Circular 0028/2023 does not apply to the applicant’s situation and she did not have the right to be converted to a permanent post. Furthermore, had the drafters of the circulars and collective agreement intended to include the applicant who was teaching in-phase in the automatic conversion process, they would have explicitly stated so, as they did for post level 1 educators teaching out of phase.

37. Furthermore, Circular 0020/2020 outlines the procedure for converting temporary Post Level 1 educators to permanent status under section 6(b) of the Employment of Educators Act. It provides specific eligibility criteria, requires consultations with governing bodies, and details the submission process for conversion requests. This circular replaces Circular 0055/2015 and Circular 0006/2019, aiming to ensure stability and proper staffing in educational institutions within the WCED. There was no evidence presented that the applicant followed the procedures out lined in the circular. The applicant never expressed any desire to be converted to a permanent position to the respondent. She actively participated in the application process for the position she held, attended interviews, and despite being unsuccessful. She did not initiate the submission process for conversion requests, as outlined in Circular 0020/2020, at any point during the relevant period. Therefore, Mr. van Niekerk’s argument that the respondent failed to follow proper procedure outlined in Circular 0003/2019 lacks merit.

38. Both the circulars and the collective agreement clearly do not specify that the applicant must be converted to permanent employment. This was evident upon reviewing the documents. The respondent’s witness also affirmed this fact during testimony. As a result, the applicant did not succeed in showing that she had a reasonable expectation, which is purportedly granted by the circulars and collective agreement, of being appointed permanently. Therefore, it can be concluded that the applicant was not dismissed within the definition outlined in section 186(1)(b) of the Act.

Award

39. The applicant failed to prove that she had a legitimate expectation, as granted by the circulars and collective agreements, of being converted to permanent employment. Consequently, by not converting the applicant permanently did not amount to an unfair dismissal under 186(1)(b)(ii) of the Labour Relations Act and the ELRC lacks jurisdiction.

40. The applicant’s case is dismissed.

Gerald Jacobs
ELRC COMMISSIONER