22 July 2025 – ELRC1175-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC1175-24/25WC

In the Arbitration matter between:
Sibahle Qhiphu Applicant
and
Education Department of Western Cape Respondent

ARBITRATION AWARD

Venue of arbitration: Online (Via Microsoft Teams)
Date: 31 March 2025, May 2025 and 30 June 2025

Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: In person
Applicant: Ms. Sibahle Qhiphu
Respondent’s Representative: Ms. Nelsonia Hlathuka (Labour Relations Officer)

DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration hearing was conducted on 31 March 2025, 13 May 2025 and 30 June 2025. The arbitration hearing was finalized on 30 June 2025. The parties submitted their Heads of arguments by 7 July 2025.

[2] The Applicant, Ms. Sibahle Qhiphu appeared in person. The Respondent, Education Department of Western Cape was represented by Ms. Nelsonia Hlathuka, the Respondent’s Labour Relations Officer.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.

ISSUE TO BE DECIDED
[4] The Applicant referred an alleged unfair dismissal dispute to the ELRC. The Applicant stated on 31 March 2025 that her dispute was about non-conversion to a permanent position, because she applied to be converted to permanent but she was not converted and therefore she was without a job. The dispute therefore concerns the interpretation or application of Collective Agreement No. 2 of 20124 which was concluded in the ELRC. The Collective Agreement deals with the appointment and conversion of temporary educators to posts on the educator establishment. I am required to determine whether the Resolution, as interpreted, applies to the Applicant’s dispute, and dependent thereon appropriate relief. I therefore have to determine if the real dispute is a dispute about the interpretation or application of a Collective Agreement, or not. Should I find that the dispute is about the interpretation or application of a Collective Agreement, I have to determine whether the Respondent correctly interpreted and applied the Collective Agreement when the Applicant was not converted to permanent.
[5] The Applicant sought to be converted to permanent.

Common cause

[6] The following was regarded as common cause between the parties:
6.1 The Applicant was employed in a funded substantive and vacant level 1 post at
a public school. The post she held was on the approved educator establishment.
6.2 The Applicant qualified for conversion in terms of the following requirements as stipulated in the Collective Agreement:
“4.2 ELIGIIBILITY FOR CONVERSION
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
continuous period of at least three months at the time of conversion;

4.2.1.3 the temporary educator is registered with South African Council of
Educators (SACE); and

4.2.1.4 the temporary educator is a citizen or permanent resident of South Africa
and is a fit and proper person as contemplated in the Immigration Act 13 of 2002, as
amended and section 10 of the Public Service Act, 1994 (Proclamation No. 103 of
1994), as amended.”

Noted for the record: The Respondent indicated that the following stipulation should
not be regarded as common cause:
“4.2.1.2 the temporary educator qualifies for the post in question;”

6.3 The Applicant was employed as an educator at Wallasdene Secondary School;

6.4 She was teaching English first additional language for grade 8 and grade 9 and
Tourism for grade 10 and grade 11 in 2024;
6.5 She applied for conversion in respect of the position she held.

SURVEY OF EVIDENCE AND ARGUMENT
[7] All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this Award, (Section 138 of the LRA, as amended).
THE APPLICANT’S EVIDENCE AND ARGUMENTS

The Applicant submitted a bundle of documents consisting of 2 pages, admitted as Bundle “A” (hereinafter referred to as “A”).

Ms. Sibahle Qhiphu (the Applicant) testified under oath and her evidence was in essence, the following:

[8] She had the necessary qualification required for the post. She had a Grade 12 certificate (page 6 of “R”), a National Diploma in Adult Basic Education and Training (page 7 of “R”). The position in question was for Educator: English First Additional Language and Tourism in the Further Education and Training (FET) phase. It was therefore for grade 10 educator. She did the required subjects as her major subjects at the Walter Sisulu University. Her academic transcript was on pages 9 to 15 of “R”).

During cross-examination

[9] The Applicant was asked whether she submitted her application for conversion. She submitted her application on 19 November 2024. She stated that it was not the first time she submitted application for conversion, as she also previously submitted such applications. She previously submitted application for conversion he submitted her last application for conversion on 19 November 2024. They normally submitted their application documents to Ms. Ntombi who was the Financial Officer at the school.

[10] The Applicant stated that she was informed on Monday the 15th of November 2024 (during her lunch period) by Zandile to quickly go and certify her documents, because the Circuit Manager was coming to the school to sign-off the documents for conversion. Zandile was the Admin Clerk at the school. She went to the police station to certify her documents. She got a lift with Mr. Falo (her colleague). When she returned to the school at around 16h00 or 17h00, in order to hand in her documents, everybody at the office already left. She left to go home and she took the document with her.

[11] She submitted her documents of Tuesday the 19th of November 2024. She was asked whether she was aware that the last day for the submission of the documents was on 15 November 2024. She responded in the negative. She did not receive any feedback after submitting her application. She was not aware that 15 November was the last day for submission of the applications. She was not told that it was urgent and that there was a deadline. She submitted her documents on the Tuesday, because she could not find her documents on the Monday (18 November 2024) and she did not know it was urgent. She stated that her colleagues who also applied for conversion, did not inform her of the deadline. She was asked where did she find other application documents to submit on 19 November 2024, if she had lost her documents. She stated that she made additional copies of the documents, because she would always make extra copies of documents.

[12] It was put to the Applicant that even if she qualified for conversion, she was not considered for conversion because her application was late. She stated that she had no idea of the date of submission. It was put to the Applicant that she was an adult educator and she had a duty to make herself aware of the deadline date. The Applicant stated that it was not her duty to do that.

Mr. Masibulele Shaun Falo testified under oath as follows:

[13] He was employed as an educator at the school. He was asked by the Applicant on 15 November 2024 to assist her with a lift to the police station because she wanted to go and certify her documents. He provided her with the required. The Applicant told him that the certification of the documents had to be attended to, urgently. There were discussions in the briefing session, that certain educators would be converted to permanent and that the Western Cape Education Department (WCED) would make the decision for conversions of the educators. During the briefing sessions, they spoke about forms to be completed, but he was not sure whether the Principal mentioned that the forms were given to the educators, or whether it would be given to them. He was aware that something was mentioned about that.

During cross-examination

[14] It was put to Falo that the Applicant’s version is that she was not sure that it was urgent for her to submit her documents on 15 November 2024. Falo stated that the Applicant told him that the documents needed to be submitted on that day that they went to the police station to certify her documents. It was put to Falo that the Applicant’s certified documents are dated 19 November 2024. He stated that he was not sure what the date was that they went together

THE RESPONDENT’S EVIDENCE AND ARGUMENTS

[15] The Respondent submitted two bundles of documents. Bundle “R” consisting of 19 pages, Bundle “S” consisting of 3 pages and Bundle “T” consisting of 2 pages.

Ms. Pauline Mcako testified under oath as follows:

[16] She was employed as the Principal at the school. The Applicant was on a contract position. There were morning briefing sessions held where educators were all informed that they needed to submit their applications for conversion by latest 15 November 2024. They were reminded in the briefing sessions that the documents had to be submitted to the admin office before 15 November 2024. The deadline was also communicated to the applicant during the briefing sessions. The other educators submitted their documents by latest 15 November 2024. The Applicant only submiited her documents on 19 November 2024. Her forms were submitted too late. She did not return to submit her documents on 15 November 2024. The Circuit Manager was at the school on 15 November 2024 in order to sign the conversion documents of all educators. The Applicant was a regular late submitter when coming to submitting required information at the school. She did not stick to deadlines. Mcako stated that the documents which the Applicant submitted during September 2024 were not documents for conversion, but the forms for extension of her contract from July 2024 until December 2024. The Applicant aslso submitted those documents very late. It was put to Mcako that it was conversion forms but she responded in the negative.

Ms. Zandile Faye testified under oath as follows:

[17] She was employed as the Secretary at the school. She gave the Applicant the application forms for conversion on a date prior to 15 November 2024. She just reminded the Applicant on 15 November 2024 that her forms were still outstanding and that the Circuit Manager was coming to sign the documents on 15 Novemebr 2024. The Circuit Manager signed the documents of the other educators on 15 November 2024, but the Applicant only submitted her documents on 19 November 2024.
During cross-examination

[18] Faye stated that she reminded the Applicant of her documents, everytime the Applicant passed her desk when coming to clock in at the office. It was put to Barnes that the Applicant regarded their meeting as a briefing. Sher told the Applicant on 15 November 2024 that they were expecting the Circuit Manager to come and sign all the applications by 15h00. It was put to Faye that she only printed the documents for the Applicant on 15 November 2024. She responded in the negative. She stated that she handed the documents to the Applicant on a date prior to 15 November 2024. She stated that she handed the documents to the Applicant around the first week of November 2024. She stated that she was not aware of any application for conversion submitted by the Applicant during September 2024.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

[19] In accordance with the provisions of section 23 of the LRA, collective agreements are binding on the parties. The purpose of section 24 of the LRA is to resolve disputes where a party to the agreement is alleged to have been in breach of the provisions of that agreement by failing to interpret or apply its terms either correctly or at all.

[20] The principles applicable to resolution of such disputes have been restated in Western Cape Department of Health v Van Wyk and others. Those principles are that:
20.1 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 the collective agreement.
20.2 The primary objects of the LRA are better served by an approach which is practical to the interpretation of such agreements, namely to promote the effective, fair and speedy resolution of labour disputes. In addition, it is expected of the arbitrator to adopt an interpretation and application that is fair to the parties.
20.3 A collective agreement in 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.
20.4 The courts and arbitrators must therefore strive to give effect to that intention, and when tasked with an interpretation of an agreement, must give to the words used by the parties their plain, ordinary and popular meaning if there is no ambiguity. This approach must take into account that it is not for the courts or arbitrators to make a contract for the parties, other than the one they in fact made.
20.5 The “parole evidence” rule when interpreting collective agreement is generally not permissible when the words in the memorandum are clear. The process of interpretation therefore does not allow parties to use extraneous evidence to construct a provision that must be read into the legal document.
20.6 Collective agreements are generally concluded after protracted negotiations, and it is expected of the parties to those agreements to remain bound by their provisions. It therefore follows that such agreements cannot be amended unilaterally.

[21] In Dioma and Another v Mthukwane NO and Others, the Court restated the principle that in interpreting the collective agreements, the arbitrator is required to consider the aim, purpose and all the terms of the collective agreement. The arbitrator must also take into account the primary object of the LRA as she/he derives his/her powers from the LRA in order to promote the effective, fair and speedy resolution of labour disputes. It is further required of the arbitrator / Commissioner to adopt an interpretation that is fair to the parties.

[22] There is no dispute about the fact that conversion could only happen after an application for conversion was submitted to the Education Department and should such conversion be approved.

[23] It appears from the evidence placed before me, that the Applicant indeed qualified for conversion, but the issue in respect of the Respondent’s version is that the Applicant did not submit her application for conversion by the due date, which was latest 15 November 2025 when the Circuit Managher visited the school in order to sign of all the doccuments for conversion of the educators to permanent positions.

[24] The Applicant’s case is that she was not aware of any deadline and therefore she was not aware that the deadline for submitting her documents was 15 November 2024. The Applicant’s own witness, Falo testified, that the Applicant told him on that day that they went to the police station, that the Applicant told him that the documents needed to be submitted on that day that they went to the police station to certify her documents. Both witnesses for the Respondent tetstified that the Applicant was aware of the deadline being 15 November 2024. This was communicated to the Applicant and other educators during the briefing sessions and also mentioned to her by Faye at times prior to 15 November 2024, when the Applicant passed her desk to clock in for work.

[25] Bundle “T” submitted by the Respondent is a Settlement Agreement concluded in the ELRC on 3 October 2024 between SADTU and NAPTOSA on the one side, and The Respondent on the other side. This Settlement Agreement stated that the process for conversion of all eligible educators shall be finalized by no later than the 15th of November 2024. However, I cannot interpret the Settlement Agreement concluded by the parties as it does not form part of the Collective Agreement.

[26] After considering the provisions of the Collective agreement, it is evident that the Applicant’s claim for conversion to permanent should not stand. I say this because the collective agreement deals with the appointment and conversion of temporary educators to posts on the educator establishment and the criteria for qualifying for such conversion. There is no interpretation to be done based on a due date for the conversion of the documents in the Collective Agreement.

[27] From the evidence placed before me, it appears that the Applicant was indeed made aware of a deadline for the submission of her documents and that she failed to submit her application by the deadline date. That was the main reason why she was not considered for conversion. The reason for her non-conversion had nothing to do with the stipulations in the collective agreement, but has everything to do with her not submitting her application for conversion by the deadline date for submission. The Applicant wants me to determine whether her application for conversion should have been considered based on the fact that she was not aware of a deadline date for submission of her conversion documents.

[28] My jurisdiction does not extend to determining that, as I am confined to determining whether the procedures in the Collective Agreement had been conformed with.

[29] The evidence placed before me suggest that the Applicant’s dispute is in fact an alleged unfair dismissal dispute in terms of section 186(2)(b)(i) of the LRA – dismissal based on a reasonable expectation for the renewal of a fixed term contract, where the employee expected the employer to renew the contract on the same or similar terms, but where the contract was renewed on less favorable terms or not renewed at all.

[30] The Applicant did not provide evidence during this arbitration to proof that dismissal was in existence. The evidence suggests that she was employed on a fixed-term contract which expired during December 2024. There is no evidence placed before me to suggest that the non-renewal of her fixed-term contract constituted a dismissal and that such dismissal was unfair.

AWARD

[31] The Applicant did not proof that she was dismissed by the Respondent.

[32] The Applicant is not entitled to any relief.

Signature: