IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA ZOOM

Case No: ELRC1081-24/25WC

In the matter between

Nathan Keenan Brandt Applicant

and

Western Cape Education Department Respondent

PANELLIST: Dr. GC. Van Der Berg
AWARD DATE: 21 May 2025

Details of hearing and representation

1. The arbitration hearing took place on 17 March 2025 and 06 May 2025 via digital zoom conference, and it was scheduled for 9:00AM. The applicant, Nathan Keenan Brandt, represented himself. The respondent, Western Cape Education Department, was represented by Krisston Smith, Labour Relations officer. The applicant alleged an unfair labour practice regarding a Grade 7 appointment in 2024, and he believes that he was supposed to be appointed and the appointment of a person from outside the school was unfair because the position was not even advertised, and he qualified for the position because of his qualifications. The respondent denied that an unfair labour practice was committed against the applicant.

Issue to be decided.

2. The applicant referred to the ELRC an unfair dismissal dispute in terms of the Labour Relations Act 66 of 1995, as amended. It was then set down for arbitration on 17 March 2025 and it was postponed after a request from both parties. It was determined that the real dispute is an unfair labour practice in terms of section 186(2)(a) of the LRA and not an unfair dismissal dispute as referred by the applicant. It was confirmed in a ruling dated 20 March 2025.
3. I am required to determine whether the respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186(2)(a) of the LRA by not appointing the applicant in the Grade 7 post, but an appointment was made for an outside person in a three (3) month period and thereafter appointed in a permanent substantive position without advertising the position. I must further decide whether the applicant was given an opportunity to be in the Grade 7 post. I must secondly determine whether the applicant was dismissed on 13 December 2024 or whether his fixed-term contract came to an end.
4. In terms of appropriate relief if I find that the respondent committed a ULP: (1) The applicant must be paid compensation and be placed in a Grade 7 post if available at the same school (Parkvale Primary School).

Background to the Dispute

5. The applicant was employed since 01 January 2023 as an educator at Parkvale Primary School, and his last fixed-term contract was from 01 April 2024 up to 13 December 2024 when it came to an end. The applicant earned R26 600-00 per month and worked five (5) days per week at an average of seven (7) hours per day. The applicant was on different fixed-term contracts from 01 January 2023 up to 13 December 2024 ranging from three (3) months to nine (9) months.
6. The dispute was referred as an unfair dismissal dispute to the ELRC, but it was decided that it is in fact an unfair labour practice dispute as mentioned. The case was conciliated, and a certificate of non-resolution was issued. It was set down for the arbitration hearing on 17 March 2025 when it was postponed and then re-scheduled for 06 May 2025 when it was concluded.
7. The parties did not present opening statements and written closing statements must be submitted on 13 May 2025 as agreed. 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.

8. Only the respondent submitted a bundle of documents. The bundle of the respondent was marked as “R” pages 1-88. The applicant did not dispute the authenticity of the bundle of the respondent.
   Applicant’s evidence and arguments
   The applicant, Nathan Keenan Brandt, Post level 1 educator in Grade 5, after having been sworn in, testified as follows:
9. He stated that he started as an educator on 01 April 2023, and he was on different fixed-term contract up to 13 December 2024 when he was notified that his fixed-term contract is not going to be renewed. His qualifications allowed him to teach on senior and FET Phase, and he was previously an educator on Grade 7 in other schools. At Parkvale Primary School he was put in a Grade 5 post where he educated on intermediate level. When he asked that his post be converted to permanent, the principal applied in April 2024, and he received in November 2024 a letter indicating that he is overqualified for Grade 5, and he was not suitably qualified.
10. A post became available in 2024 at Grade 7 as one of the educators asked for a transfer early in 2024. He believed that he had to be placed as it was a senior phase vacancy, and he was qualified to teach on the senior phase. The Grade 7 vacancy was not internal and/or external advertised as he did not see or hear about such an advertisement. A person from outside the school, the daughter of a Head of Department (HOD) put in her application, and she was interviewed and appointed in the Grade 7 position and afterwards permanently appointed and is presently in the Grade 5 post. If he were given the opportunity to get in the Grade 7 post, he would have become permanent but now he is sitting at home with five (5) children to take care off. There was a total lack of transparency from the side of the SGB and the WCED.
11. Under cross-examination the applicant confirmed that he was in fact appointed as from 01 January 2023 in Parkvale Primary School. He agreed that he was the educator in the Grade 5 post on an intermediate level. His qualification included a BA degree in Medical Bioscience obtained on 20 March 2012 as well as a UCT Postgraduate Certificate in Education dated 12 March 2013. He lastly also received from UCT a BA Honns in Education Studies on 17 March 2015. He was therefore qualified for the Grade 7 post on a senior level. He agreed that he was and is suitably qualified for Grade 7 but not for Grade 5 where he was placed.
12. He was appointed at this school after an advertisement for a Grade 6 position and he sent in his CV and documentation. He was shortlisted and interviewed and successful and then placed in the Grade 5 post on a fixed term contract and he was under the impression that he would be converted after three months to permanent. If did not happen and he was given several fixed-term contracts up to December 2024. He has no written proof that after the first three (3) contract he would be converted to a permanent post. He did not approach the principal about his conversion as it was supposed to take place according to the conversion policy. He was aware that his fixed-term contract would end on 13 December 2024.
13. He also confirmed that he recently became aware that he was placed in the incorrect phase as he needed to be placed as a teacher in a senior and/or FET Phase. The position for the vacant Grade 7 post was not advertised internally and the SGB did not follow the internal procedure of filling the post. He is not aware of the internal procedure to be followed but he knew that he had to be considered for the post since he is internal and has the correct qualifications. He was in a Grade 5 position at the school and the vacancy was for a Grade 7 post, and the lady from outside was appointed in March 2024 and her name is Chandery Williams. The applicant referred the dispute regarding the Grade 7 post to the ELRC on 13 January 2025, but he was aware of it since March 2024. He stated that he applied for condonation, and it was condoned. He also referred the unfair dismissal dispute to the ELRC on 13 January 2025 and the time since March 2024 to 13 December 2024 he was on a fixed-term contract.
14. He agreed that he was informed in November 2024 that he was not suitably qualified in the Grade 5 post that he was placed in as he was overqualified. He was not in a substantive post and not appointed in a Grade 7 post. He did not apply to be converted but he was in 2015 in a permanent post at another school. He has proof that the Grade 7 post was not advertised by the SGB before it was filled with the person from outside the school.
15. Section 186(2) of the LRA was read by the representative of the respondent and it states: “Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving-(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”. According to the representative the dispute does not fall under section 186 of the LRA. The applicant stated that it was unfair conduct by the SGB. He lastly stated that he was not aware that he was in a growth post in Grade 5.
    Respondent’s evidence and argument
    The respondent called one (1) witness to testify.
    The first witness of the respondent, Gerald James Hermanus, Principal at the Parkvale Primary School, after having been sworn in, testified as follows:
16. The witness stated that he was appointed in the principal position at the school since 01 October 2023 and he knows the applicant as a teacher at the intermediate phase in a Grade 5 post. The applicant was appointed in a contract post and the final one ended on 13 December 2024 and the applicant was not in a substantive vacant post. On page 73 of bundle “R” in the People Management-E Recruitment post details it states the reason the post is vacant is that it is a growth post, and the contract lapsed the end of 2024-Grade 5 post. In April 2024 the principal applied for conversion for several teachers. The result of the conversion for the applicant post was negative as he was not suitably qualified for the intermediate phase.
17. On page 75 of bundle “R” under Parts System- Phase applied for conversion the intermediate phase the comments are not suitably qualified. It was communicated to the applicant at the end of September 2024, and he did not respond. The applicant stated in his evidence in chief that he only received communication in November 2024 that his contract is terminated in December 2024. The witness stated that it is not true as all teachers signed a document that he gave them a letter and explained to them. Nobody came to him after he gave each of them a letter and he explained suitably qualified as a general discussion in a meeting.
18. The witness explained the work performance of the applicant at the school and stated that the applicant’s absenteeism was high, and he was several times late. The applicant left several times early in the afternoon due to family responsibilities issues and he was always late with his examination papers. He further stated that the onus was on the applicant to be suitably qualified for the post he was in. It was communicated to all teachers that the contract posts will end in December 2024. Letters were sent out accordingly in September 2024. On page 37 of bundle “R” under 4.2.1.2 it states: “The temporary educator qualifies for the post in question”. The witness stated that the applicant did not meet the requirement to be converted to a permanent position as the methodology he used in the classroom and his qualifications were clearly not in the intermediate phase. The applicant was not suitable to teach in Grade 5 as he was overqualified.
19. The applicant stated in his evidence that another educator was appointed, daughter of the HOD, in the Grade 7 post and he was not considered for the Grade 7 post, and it was unfair against him. The witness stated that the Grade 7 teacher was still at school in January 2024 and he was transferred to another school. The applicant was already in the Grade 5 class and when the Grade 7 teacher was transferred there was a need for a teacher, and he asked all teachers present at the school to spread the word and asked if they knew of a Grade 7 teacher. The HOD’s daughter was brought in and he as principal completed applications for all relevant teachers to be converted. Everybody knew that he was looking for a Grade 7 teacher and the applicant never came to him and asked that he be put in the Grade 7 post.
20. Under cross-examination he confirmed that the applicant was not put in poor performance as he felt it was better to sit down with the applicant and there was an improvement in the work performance of the applicant afterwards. He stated that the applicant was aware that he was not supposed to be in Grade 5 as he was not suitably qualified. However, the WCED and the SGB were aware that the applicant was suitably qualified for the Grade 7 post. The witness agreed that there was no formal internal written advertisement as he informed all teachers that he was looking for a Grade 7 teacher and all teachers internal were already placed in classes. The SGB sat and had interviews with outside educators, and the post was also not externally advertised. The Department and the SGB decided that they need a Grade 7 educator immediately and it was advertised through the teachers at the school by word of mouth.
21. The HOD was part of the SGB and only in November 2024 was the applicant notified that he was not suitably qualified. The lady appointed from outside was there for three (3) months before she was converted to a permanent post. Under re-examination the witness confirmed that it was the prerogative of the SGB to interview external candidates after word of mouth. He discussed it with the SGB, and they agreed to do it this way due to the urgency. The SGB can nominate a conversion candidate in the school and the WCED decides who can be converted to permanent. Closing arguments
22. Both the applicant and the representative of the respondent presented written closing arguments by 13 May 2025. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.

Analysis of evidence and argument

23. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter.
24. The applicant referred an unfair labour practice dispute in terms of 186(2) of the LRA. The applicant was previously employed as a Post Level 1 educator teaching Grade 5 at Parkvale Primary School, in Elsiesrivier which falls within the Metro North Education District at the time in which said dispute arose. An application for conversion was submitted by the applicant and was declined by the Directorate: Recruitment and Selection due to the applicant not being suitably qualified to teach in the intermediate phase.
25. I am required to determine whether the respondent committed an unfair labour practice (hereinafter an ULP) in terms of Section 186(2)(a) of the LRA by not appointing the applicant in the Grade 7 post, but an appointment was made for an outside person in a three (3) month period and thereafter appointed in a permanent substantive position without advertising the position. I must further decide whether the applicant was given an opportunity to be in the Grade 7 post. I must secondly determine whether the applicant was dismissed on 13 December 2024 or whether his fixed-term contract came to an end.
26. If the respondent has committed an unfair labour practice against the applicant, I must determine In terms of appropriate relief: (1) The applicant must be paid compensation for the period of unemployment ex post facto to his contract termination with the WCED on 31 December 2024.
27. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must prove that he was overlooked for the Grade 7 post that became vacant early in 2024 and that he was aware that the post was not advertised internally.
28. The applicant testified that he was appointed at the school on 01 January 2023 in the Intermediate Phase. He was placed in the phase initially despite his qualifications being suited for the Senior and Further Education Training (FET) Phase. He further stated that this placement had affected his opportunities for conversion to a permanent post within the employ of the WCED. After one (1) year being appointed at the school, a post became available within the Senior Phase. The SGB had placed him in the Intermediate Phase which he was not suitable qualified to teach in, but he was suitably qualified to teach in the Senior and FET phase and the SGB allegedly known of this, as well as the WCED, according to his qualifications and transcript he had presented.
29. The applicant further testified that he had to be placed in the post that had become available at the school and the SGB should have discussed the post with him and other internal candidates so that those who qualify could apply for said post and to ensure a fair procedure was followed. The applicant further alleged that he was not even aware of the post being advertised at all and therefore he could not contest the filling of the post. He learned that the external candidate became permanent after three (3) months of being in that position. Later he found out that the educator was placed in Grade 5 for the academic year of 2025. The applicant believes that if he were placed in the Grade 7 position at that time or given an opportunity, he would have become permanent and that this was in essence the basis for his dispute. He also alluded to a lack of transparency at the school in relation to the post and the advertisement thereof as well as the SGB undermining a fair conversion process. The applicant placed on record that he only recently came to understood that he was not suitably qualified to be converted in the Grade 5 post in which he was placed.
30. The applicant further claimed that he was unaware of the fact that he was in a growth post at the school. The applicant confirmed and agreed that his dispute falls within the ambit of section 186 (2) of the LRA and it is not an unfair dismissal dispute.
31. Section 186 (2) of the LRA states that the meaning of unfair labour practice is “any unfair act or omission that arises between an employer and an employee involving –(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for reasons relating to probation) or training of an employee or provision of benefits to an employee; (b) the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or reemploy a former employee in terms of any agreement; (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act of 2000.
32. The applicant stated that he felt the procedure taken by the school in terms of the conversion falls under unfair labour practice towards him, as he was unable to contest the appointment made. He was reminded that the onus vests with him that an unfair labour practice were committed by his employer, which he failed to demonstrate and/or prove.
33. The applicant submitted that the principal testified that the post of Grade 7 was advertised, but he could not explain or provide any process followed and he could not explain the procedure that was followed in placing the advertisement and where it was placed. All that the principal said was that the SGB decided and he as principal was part of the SGB meeting. The execution of that decision should be carried out by him, in terms of placing the advertisement and all the administrative functions that go with it. If the advertisement is placed on whatever platform of bulletin, this will be done by the principal. He could not provide any evidence that the applicant was informed via email or text message of the vacancy.
34. He further submitted that the person who was appointed and later converted is a family member of Mr M Davids. He should have removed himself from the process and should have informed the SGB that the candidate was his daughter. If a member fails to declare such then it would amount to nepotism, because a member should not serve on an interview committee if a family member is being interviewed. This is due to potential conflict of interest and the need to ensure fairness and impartiality in the selection process.
35. As soon as the principal becomes aware that a vacancy would become available, he could have or should have informed the applicant. The teacher who left the school whose post became vacant must have given notice of him leaving. Notice of such would be three (3) months because the principal said he raised it in the staff room on several occasions. Therefore, there could not have been a rush to get someone in his place. The principal was aware in advance of the educator leaving. The potential not having an advertisement may lead to claims of unfairness or discrimination if the recruitment process is perceived as lacking transparency.
36. It is the testimony of the witness of the respondent that he was appointed at the school during October 2023 and the applicant was already appointed at the school at the time he arrived. The principal confirmed that the applicant did not occupy a substantive vacant funded post at the school and that his contract would end in December 2024. He stated that the applicant was in a growth post that was set to lapse at the end of 2024. The applicant knew all contracts, including his would terminate at the end of 2024, as the principal had read and discuss a letter regarding same with the applicant.
37. It is his further testimony that during April 2024 an application for conversion was made for all contract teachers at the school including the applicant. The outcome received from the conversion process was that the applicant was not suitably qualified to be converted. The outcome was communicated to the applicant at the end of September 2024 and not November 2024 as claimed by the applicant. He said that the applicant never responded to it. The applicant never enquired nor discussed the status of the conversion or what he could do to become permanent at school. The principal further confirmed that the onus vested with the applicant to ensure that he was suitably qualified to teach in a post which he applied for and was appointed in.
38. The principal mentioned that the applicant’s work performance at school was not always good. There was frequent absenteeism, and he always asked to leave the school early. The applicant always submitted his question papers later than the due date for examinations. The principal felt it best to work through the issues or challenges with the applicant instead of taking formal disciplinary action against him, since he is still a young educator.
39. The principal further confirmed that the applicant was not suitable to teach in Intermediate Phase and the applicant never approached him nor requested placement in the Grade 7 post, despite him having firsthand knowledge of the vacancy. According to the principal a former Grade 7 teacher at the school requested a transfer to another school and once the transfer was approved a vacancy became available that needed to be filled as soon as possible, as it was during the school year. The principal had firstly asked all the teachers which included the applicant several times and in meetings whether they could recommend a Grade 7 educator willing to teach at the school. By the time the vacancy becomes available, the applicant had already been assigned a Grade for the academic year, and the principal did not want to cause further instability at the school. The Grade 7 post was not filled internally since all the learners at the school already had a class for the year and ultimately the post was advertised according to the decisions of the SGB. He further explained that when a post needs to be filled urgently, it is advertised by word of mouth.
40. It is the submission of the representative of the respondent that the applicant was employed on a contractual basis as a ‘temporary educator’ of which was concluded on a fixed term basis. A fixed-term contract can be defined as a contract of employment that terminates on a specific date, the completion of a specific task or project, or the occurrence of a specific event. The applicant who upon accepting the offer of appointment was duly aware that said contract had a start date of 01 January 2024 up until the end date of 31 March 2024, as per the nomination form completed on 12 December 2023. The same was confirmed by the principal and the applicant during their respective testimonies, which was the last contract the applicant entered into with the respondent for a period of three (3) months.
41. It is further submitted that in addition to the aforementioned, a concession was granted by the respondent to extend all temporary contracts with the end date of 31 March 2024, up until 31 December 2024, of which no further extension would be granted thereafter. The applicant testified that he never once reached out to the principal, school management not the WCED, to assist him in establishing the correct information regarding conversion and whether he qualified, however, instead merely acted on an assumption that he was eligible to apply for a permanent vacancy because he worked on contract at the school.
42. It is further submission by the respondent that they further draw attention to Collective Agreements 4 of 2018 and 2 of 2024 with references at paragraph 4.2.1.2. that in order for a temporary educator to be converted to a permanent post, said educator must be eligible for conversion by being suitably qualified to teach in the post within subject and phase, of which is understood to be the applicant’s duty to ensure that he meets the post criteria of a vacancy he wishes to fill, as well as, ensure that the post in question is in fact a substantive vacant funded post.
43. According to the Collective Agreement 4 of 2018 in annexure A it states under 4.2.1. A temporary educator may only be appointed permanently to funded substantive and vacant level 1 post at a public school which is on the approved educator establishment if: 4.2.1.1. the temporary educator has been employed in a temporary capacity for a continues period of at least three months at the time of conversion; 4,2.1.2. the temporary educator qualifies for the post in question.
44. According to the respondent, the applicant failed to show good cause but also failed to provide a plausible and reasonable explanation as to the adamance in wanting to be converted in a post at the school in which he did not teach. According to the respondent it is apparent that the applicant was not eligible to be converted from a temporary employment to permanent within the employ of the WCED based on the criteria outlined in Collective Agreement 4 of 2018 to be read with Collective Agreement 2 of 2024.
45. It is clear from the testimony of the witness of the respondent and the closing arguments of the representatives as well as the testimony of the applicant that the respondent has not committed an unfair labour practice to the applicant. I find that the applicant could not objectively prove that he was in fact suitably qualified to be converted to permanent and that he was the incumbent of a substantive vacant funded post, which he failed to demonstrate. The applicant is disputing that he was not converted to permanent in a Senior Phase (Grade 7) post in which said applicant was never placed in nor taught. The applicant was, however, teaching in an Intermediate Phase (Grade 5) post at the school that was out of subject and out of phase according to his qualifications. The applicant was further nominated in a growth post additional to the staff establishment that clearly stipulated the start and end date of the contract. The growth post does not form part of the official staff establishment and is only required based on the needs assessment of the school.
46. I further find that the applicant did not even apply or told the principal that he would be interested in the Grade 7 post that became vacant in 2024. Although the Grade 7 post was not internally advertised, the applicant was aware of the vacant post as it was told by the principal in meetings to all teachers and spread by word of mouth as decided by the SGB due to the urgency. Therefore, the applicant was given an opportunity to be in the Grade 7 post but did not apply for the post. The applicant was not dismissed on 13 December 2024 because his fixed-term contract came to an end as already determined in April 2024 and notified in September 2024.
47. Considering the above I will make the following award.

AWARD

48. The respondent, Western Cape Education Department did not commit an unfair labour practice dispute in terms of 186(2) of the LRA regarding not appointing the applicant in the Grade 7 post, as the applicant was given an opportunity to be in the Grade 7 post but did not apply for the post.

Signature:
Basic Education