22 April 2026 – ELRC1191-25/26LP

ARBITRATION AWARD
IN THE ELRC ARBITRATION
IN THE MATTER BETWEEN
SELEMA KGAHLISO APPLICANT
AND
DEPARTMENT OF EDUCATION, LIMPOPO RESPONDENT
Case No: ELRC 1191-25/26LP
DATE OF THE AWARD: 20 APRIL 2026
ELRC ARBITRATOR: THOMAS MAHASHA

DETAILS OF THE HEARING AND REPRESENTATION.

1) This arbitration took place in terms of the referral of an interpretation and application dispute by the Applicant to the ELRC. It was set down for arbitration on 25 March 2026 at the Department of Education, Limpopo in Polokwane. The Applicant was in attendance represented by Mr Seopa R.R of SADTU. The Respondent was represented by (Mr or Ms? )Rasebotsa, Assistant Director of the Department of Education attached to grievances and dispute resolution directorate.

  ISSUES TO BE DECIDED.

2) The Applicant argued that the Respondent incorrectly interpreted and applied clauses B.6.3, B.6.4.2.1, B 6.4.2.1, B.6.4.2.4, B.6.4.2.2, and B.6.4.3 of Collective Agreement 4 of 2016. (Name of Collective Agreement)
3) I am therefore called upon to determine whether or not the clauses referred to above were correctly interpreted and applied by the Respondent.
BACKGROUND TO THE DISPUTE.

4) The Applicant sought the R&R (provide full wording)process to be redone.

SUMMARY OF EVIDENCE .
APPLICANT’S EVIDENCE.
5) The principal flouted resolution 4 of 2016, Clause B.6.3 of the Collective Agreement requires of the school principal to inform staff members about the staff establishment, and that the action must be followed by a staff meeting. The principal informed the staff about the staff establishment on the day of the meeting and even distributed copies of the staff establishment. The views of the staff members were not deliberated on.
6) Contrary to the provisions of B.6.4.2.2. the principal highlighted administrative duties which the Collective Agreement does not provide for. . The Applicant should by virtue of his experience and qualifications, been allocated mathematics.
7) If the principal had used the criteria of LIFO, the Applicant would not have been affected by R&R(?) process. Teachers were compared in terms of duties as shown in the minutes of the meeting which is against the provisions of clause B.6.4.2.4. of the Collective Agreement.
8) The Applicant was allocated mathematics literacy so that he may not qualify for promotion.
9) Kolobe Malcom (witness?)submitted that the principal incorrectly used flawed calculations which led to the number of eleven educators. It was not disclosed to the educators how educators were compared against each other in terms of experience and qualifications. If his competencies were considered, he should not have been affected by the R and R process. The Applicant had not been informed in writing that he had been declared in excess.
10) The Applicant was not declared additional to the staff establishment, but additional to Mathematics, thus wrongly allocated. If a comparison should have been made with other educators, the Applicant would be teaching Mathematics.
11) The principal disregarded the Circuit Manager’s advice of doing reallocation of subjects..

   EMPLOYER’S EVIDENCE.

12) (Who testified?) Clause B.6.3 dictates that the principal must inform his/her staff of the institution’s new staff establishment and of the procedure that will be followed in identifying educators who cannot be accommodated on the new establishment. The principal informed the staff on 11 November 2025 on their school’s whatsapp group as he was booked off sick on that day. The staff was ultimately invited to a meeting which resulted in the minutes. The Applicant attended the meeting and signed the attendance register.
13) The meeting could not be concluded, but was adjourned to 19 November 2025 at 13:00 because the principal sought time to reflect on concerns raised by the educators. The Applicant did not attend the meeting. It was during that meeting that the principal advanced reasons why the profiles and subjects of educators could not be disclosed..
14) The Applicant is not declared in excess or additional, nor affected by the R&R process and is therefore teacing mathematics and mathematics literacy at grades 10 and 11. The principal had therefore complied with clause B.6.4.1. that authorises her/him to recommend educators who may be declared additional to the staff or in excess. There was therefore no need to absorb him.
15) The school qualifies for 1 principal, 1 deputy principal, two heads of departments and eleven post level one posts, a total of which is fifteen.
16) The Applicant is accommodated within the eleven post level one posts.
17) The Applicant failed to acknowledge that in terms of clause B.6.4.2.2, competency is one of the factors and one of the key areas to be considered by the principal when matching and allocating subjects to educators.
18) The principal had in compliance with clause B.6.4.2.4 not applied “LIFO” because there is no mathematics educator declared in excess at the school or affected by the R&R process. The mathematics educator who is available at the school, had been awarded by Mankweng Circuit several times. She also serves as a finance officer. She is therefore more competent than the Applicant. The Applicant never received such awards.
19) Collective agreement 4 of 2016 was correctly applied and implemented by the principal.

ANALYSIS OF ARGUMENTS AND FINDINGS.

20) Collective agreements are in accordance with the provisions of section 23 of the Labour Relations Act, 1995, binding on the parties.
21) The purpose of section 24 of the LRA is to resolve disputes where a party to an agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms correctly.
22) In Western Cape Department of Health v Van Wyk & Others (2014) 35 ILJ 3078 (LAC), the court laid down the principles of interpretation as follows: “when interpreting a collective agreement, the arbitrator is enjoined to bear in mind that a collective agreement is not like an ordinary contract, and he/she is therefore required to consider the aim, purpose and all the terms of a collective agreement….. in addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties. A collective agreement is a written memorandum which is meant to reflect the terms and conditions to which the parties have agreed at the time that they concluded the agreement”
23) I am therefore, required to give effect to the intention of the parties, to give words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. Parties’ intention is clearly stated in clauses B.6.3, B.6.4.2.1, B 6.4.2.1, B.6.4.2.4, B.6.4.2.2, and B.6.4.3 of Collective Agreement 4 of 2016 which are a subject of contention.
24) The purpose of Collective Agreement 4 of 2016 is to replace the provisions of Collective Agreement 2 of 2003 regarding the transfer of serving educators in terms of operational requirements.
25) In terms of clause 6 of the Collective Agreement, “any dispute arising from the application or interpretation of this collective agreement shall be referred to the Council for resolution in terms of its dispute resolution procedures”. The dispute is therefore properly before the Council.
26) Clause B.6.3 requires of the principal to inform his/her staff of the institution’s new staff establishment and of the procedure, as set out in the next paragraph, that will be followed in identifying educators who cannot be accommodated on the new establishment. It is clear that the clause does not specify the manner in which the principal must inform the staff. Any form of consulting with educators, shall for purposes of this clause be compliant. It was not disputed by the Applicant that such consultation took place on two occasions. She held a meeting with the staff educators on 17 November 2025. The Applicant did not attend the meeting which was held on 19 November 2025. The principal had in my view, complied with clause B.6.3. The Applicant would not have known if the principal did not consider the views of educators because he was not in attendance.
27) Clause B.6.4.1 provides for the next step that the principal must take after informing the staff of the new post establishment and the prescribed procedures to be followed declaring educators additional or in excess to the post establishment. The first prescribed step in terms of clause B.6.4.1 is for the principal to recommend for the absorption of educators declared additional in vacancies that exist or will exists in the near future at that particular school or institution. There was no basis for a claim that the principal did not comply with this clause.
28) Clause B.6.4.2.1 enjoins the Circuit Manager together with the principal to identify the educators in addition taking into account: the views of educator staff expressed in a formal meeting, the needs of the institution, more particularly in relation to its specific curriculum obligations, the number of classes, the timetable and the number of learners to a class.
29) According to the submissions made, the principal considered the operational needs and specific curriculum needs when declaring educators additional to the staff establishment. Educators were given an opportunity to state their views in a formal meeting. There is no indication or evidence that the principal did not consider the views of staff educators as prescribed by clause B 6.4.
30) Clause B.6.4.2.4 provides for a situation where LIFO (last in first out) may be applied. The clause provides: “if a decision has to be taken regarding two or more educators competing for the same post, the principle of LIFO shall be applied. An educator’s service period for the application of LIFO shall include all continuous service rendered at any public institution”.
31) In this case, it is common cause that the Applicant was not declared additional. Neither was a decision taken to have him transferred to another institution. As a result, the provisions of Collective Agreement 4 of 2016 do not find application under the circumstances, if one considers the purpose behind the Collective Agreement.
32) Neither was there a need for the Provincial Education Department concerned to inform the Applicant that he had been declared additional because he was simply not declared additional.
33) The Applicant’s version that the decision to allocate him mathematics literacy was intended to limit his chances for promotion, is for purposes of the interpretation of the Collective Agreement irrelevant and baseless.
34) The powers of matching educators to posts according to experience, rank and competencies is the prerogative of the principal.
35) In this case, the Applicant is aggrieved by the decision not to allocate him mathematics in the same school.
36) The Applicant failed to prove on a balance of probabilities that the Respondent failed to correctly interpret and apply Collective Agreement 4 of 2016.
37)

AWARD.
38) The Respondent correctly interpreted and applied clauses B.6.3, B.6.4.2.1, B 6.4.2.1, B.6.4.2.4, B.6.4.2.2, and B.6.4.3 of Collective Agreement 4 of 2016 when not allocating Mathematics to the Applicant.
39) The Applicant Selema Kgahliso is not entitled to relief.
40) The claim is dismissed.