22 July 2025 – ELRC1402-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC1402-24/25WC

In the Arbitration matter between:
SADTU obo Daniel Sipho Ngomane Applicant
and
Education Department of Western Cape Respondent

ARBITRATION AWARD

Venue of arbitration: Online (Via Microsoft Teams)
Date: 16 May 2025 and 20 June 2025

Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. Tesrel Fortuin (SADTU Official)
Applicant: Mr. Daniel Sipho Ngomane
Respondent’s Representative: Ms. Liezle Diedericks (Labour Relations Officer)

DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration hearing was conducted on 16 May 2025 and 20 June 2025. The arbitration hearing was finalized on 20 June 2025. The parties submitted their Heads of arguments by latest 27 June 2025.

[2] The Applicant, Daniel Sipho Ngomane, was represented by Mr. Tesrel Fortuin from SADTU, a registered trade union. The Respondent, Education Department of Western Cape was represented by Ms. Liezle Diedericks, 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 dispute concerns the interpretation or application of Collective Agreement No. 4 of 2016 which was concluded in the ELRC. The Collective Agreement deals with the transfer of serving educators in terms of operational requirements. 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 Respondent correctly interpreted and applied the Collective Agreement when they declared the Applicant in access and accordingly transferred the Applicant to another school for performing his duties as educator.
[5] The Applicant sought the interpretation and application of Collective Agreement No. 4 of 2016.

[6] The Applicant sought to be transferred back to his previous position, or alternatively that the process which led to him being declared in access, be restarted.

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

[8] The Applicant submitted a bundle of documents consisting of 4 pages, admitted as Bundle “A” (hereinafter referred to as “A”).

Mr. Daniel Sipho Ngomane testified under oath as follows:

[9] He was employed as an Educator at Usasazo High School in Kayalitsha. He was transferred to Manyano Secondary school. Paragraph B.6.4.1 of the Collective Agreement stated the following (page 1 of “A”):
“The principal after consulting with the educator staff of the institution at a formal staff meeting, may recommend that educators who may be declared in addition, be absorbed in vacancies that exist or will exist in the near future (not longer than six months) at that education institution.

[10] The Applicant stated that the principal did not follow the correct procedure because he informed them in a staff briefing session that he was going to select the educators who were in excess. The principal said he was going to go to the offices of the District Office on the following Monday, but that never happened.

[11] Paragraph B.6.4.2.2 of the Collective Agreement stated the following (page 2 of “A”):
“After considering B.6.4.1 above, the Circuit / District Manager together with the principal shall identify the educators in addition, taking into account the following:
B.6.4.2.1 The views of the educator staff of the institution as expressed at a formal meeting convened by the principal;

B.6.4.2.2 The needs of the institution, more particularly in relation to its specific curriculum obligations, the number of classes, the timetable and the allocation of learners to classes.

B.6.4.2.3 The Circuit / District Manager shall take cognizance of the fact that there is not necessarily a direct relation between the posts identified as in addition and an educator who will be declared in addition, as there may be more than one post with substantially the same duties attached to it;

B.6.4.2.4 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 educators service period for the application of LIFO shall include all continuous service rendered at any public education institution.”

[12] The Applicant stated that he was called on 6 September 2024 to a meeting with the principal. He attended the meeting in the principal’s office. The principal informed him that the Senior Management Team (SMT) declared him in excess because of his age. He thereafter went back to his class. He stating that at the time, he was teaching Geography grade 9, History grade 9 and Creative Arts grade 8.

[13] The Applicant stated that the principal did not discuss the minutes of the SMT meeting (page 1 to 3 of “R1”) with him, when he met with the principal on 6 September 2024. The minutes of the SMT meeting was dated 5 September 2024.
It must be noted for the record that the minutes of the meeting indicated that the following was stated and discussed during the meeting:
“The meeting was to identify two PL1 (post level 1) teachers who must be declared in excess.

All decisions made are based on school curriculum needs. Not last in first out.
The Geography department was identified as one of the departments where we have excess teachers, because of the principal also being a Geography teacher and currently not teaching. The meeting decided due to the shortages of teachers (2025) the principal must go back to teach geography. When looking at the department, Ms Dlekedla is currently teaching Geography grades 11 and 12. Mr. Pakade the HOD is currently teaching Geography grade 9 and 10. Mr. Ngomane in excess since it would be easier for the principal to assist with teaching grade 8 and 9 then to teach in the FET phase. The principal has a huge administrative role to play at the school other than just teaching.

[14] The Applicant stated that he asked the principal to arrange a meeting between him, the principal and the Circuit Manager (Mr. Manganeng) because he wanted the Circuit Manager to provide him with reasons in terms of the criteria used to declare him in excess and to explain what procedure was followed to do that. The meeting never took place.

[15] The Applicant stated that the principal handed him a letter during December 2024. The principal told him that the letter was from the Circuit Manager. The letter stated that he must report at Manyano Secondary school when the school would re-open in January 2025.

[16] He lodged a grievance and the grievance meeting was conducted at the Circuit office. The principal could not explain quite well during that meeting, why he was declared in excess. The principal said there were a lot of teachers teaching Geography and that the principal decided to teach his classes for Geography. The principal said that age was the factor. The SADTU Official (Mr. Fortuin) told the principal he could not jut discriminate based on age.

[17] The Applicant stated that he had been an educator for more than 30 years. Ms. Dlekedla had been an educator for approximately four (4) years.
During cross-examination

[18] It was put to the Applicant that Barnes had a meeting with him and thereafter the SMT meeting was conducted. The Applicant stated that Barnes called him to his office and told him that Top Management had declared him in excess because of his age. The Applicant stated that he was 62 years of age. It was put to the Applicant that Barnes told him that he had the option of retiring because of his age. He stated that Barnes never mentioned anything about retiring. Barnes just used the words “because of age”. He was asked whether he signed the letter Barnes gave him. He stated that he only signed it after he started at Manyanho Secondary school during the second week of January.

[19) It was put to the Applicant that Barnes, as the principal was now teaching Geography for grade 8 learners. He stated that he heard that Barnes was teaching Geography for the grade 8 learners.

[20] The Applicant was asked how far was Manyano High school from Usasazo Secondary school. He stated that they were two or three kilometers apart. He stated that the transfer caused him inconvenience. The inconvenience caused by the transfer was that he was trying to get used to Manyano High school. He stated that he was spending more on petrol because of the distance in travel.

THE RESPONDENT’S EVIDENCE AND ARGUMENTS

[21] The Respondent submitted two bundles of documents. Bundle “R” consisting of 14 pages and Bundle “R1” consisting of 3 pages.

Mr. Patrick Barnes testified under oath as follows:

[22] He was the principal of Usasazo High School since 1 January 2024. He stated that he first had a meeting with the SMT. He thereafter had a meeting with the staff. He thereafter had a meeting with the Senior management and after that he had a meeting with the Applicant. He informed all staff in the staff meeting that two educators would be placed in excess (declared in excess) which meant these educators could be re-deployed or “taken out”. He explained that educators who wanted to do such out of free will were welcomed to do so. He explained to the staff that they would look at the curriculum needs of the school when following this process.

[23] During the SMT meeting they identified that two teachers on the staff compliment had to be placed in excess. The SMT consisted of the principal, two Deputy principals and seven HOD’S (Heads of Department) They did not reach a decision during that meeting in respect of who the two teachers would be. They only reached a decision during the Senior Management Team meeting in respect of the two teachers identified as being in excess. Two of the Deputy Principals proposed that the principal should also be teaching Geography as a subject. He had a meeting after that meeting, with the Applicant and the female teacher who was identified in excess.

[24] Barnes stated that he called the Applicant to his office. He informed the Applicant that he was one of the two educators who were declared in excess, based on the school’s needs. He explained to the Applicant that being in excess did not mean he would be without a job. He saw that the Applicant looked upset and he explained to him that he it did not mean that he was without a job. He told the Applicant that it only meant that he would be deployed. He highlighted to the Applicant the fact that the Applicant was old of age and that he also had other options should he be unhappy with him being declared in excess. He stated that he never told the Applicant that he was declared in excess because of his age. He stated that the core reason for the Applicant being identified as being in excess, was due to the school’s curriculum needs.

[25] He stated that the Applicant never answered him during that meeting. He also could not remember the Applicant askim him any questions. Barnes stated that he received letter from the Education Department of the Western Cape towards the end of 2024, before the school closed for the December holidays. The letters stated that the other educator had been re-deployed to a school in Eersterivier and the Applicant had bee re-deployed to Manyano High School which was also situated in Khayalitsha. Both educators reported to Usasazo High school when the school re-opened in January 2025. He asked them if they were aware that they had to report at the other schools. The Applicant told him he would not sign the letter until he had a meeting with the Circuit Manager.

[26] The applicant decided to go and report at the other school after more than a week and after the principal of that school enquired about his whereabouts. Barnes stated that it was a five minute drive from their school to Manyano High School.

During cross-examination

[27] It was put to Barnes that the Applicant regarded their meeting as a briefing and not as a formal meeting. Barnes stated that he regarded their meeting as a formal meeting. Barnes was asked why they identified the Applicant as being in excess and not the other educator. He stated that Dlekedla was teaching Geography grade 11 and grade 12 whilst the Applicant was teaching grade 8 and grade 9. Both were qualified to teach Geography. Barnes stated that the Applicant previously taught Geography for grade 10 and 11 learners but the Applicant was moved back to grade 8 and 9 due to the poor performance of the learners he taught.

Mr. Thabo Manganeng testified under oath as follows:

[28] He was the Circuit Manager for Circuit 3 from 2016.. He was also Chief Education Specialist. The school had too many educators. A principle was regarded as and educator. Barnes was going to teach the subjects of the Applicant. They could not take the risk of the Applicant teaching grade 12 learners. He never taught grade 12. Experienced educators were required to teach the grade 12 learners. He stated that the teachers were not competing for a post of Geography teacher. He normally did not have meetings with educators who were declared in access. The Applicant and another educator wanted to have a meeting with him and he explained that he normally would not have such meetings. There was an afternoon when he wanted to have the meeting with them, but they were not available.

During cross-examination

[29] Manganeng was referred to Paragraph B6 of the Collective Agreement which stated the following:
“B6 TRANSFER OF SERVING EDUCATORS IN TERMS OF OPERATIONAL REQUIREMENTS
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 in the grading or classification of an institution,
B.6.1.4 Merging or closing of institutions,
B.6.1.5 Financial constraints”

[30] Manganeng was asked whether an educator’s performance was part of the operational requirements. He stated it was not part of that. He stated that an educator’s performance could not be used to declare him in excess.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

[31] 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.

[32] 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:
32.1 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.
32.2 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.
32.3 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.
32.4 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.
32.5 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.
32.6 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.

[33] 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.

[34] Paragraph B.6.4.1 of the Collective Agreement states the following:
“The Principal, after consulting with the educator staff of the institution at a formal staff meeting, may recommend that educators who may be declared in addition, be absorbed in vacancies that exist or will exist in the near future (not longer than six months) at that education institution.

[35] Paragraph B.6.4.2.2 of the Collective Agreement stated the following (page 2 of “A”):
“After considering B.6.4.1 above, the Circuit / District Manager together with the principal shall identify the educators in addition, taking into account the following:
B.6.4.2.1 The views of the educator staff of the institution as expressed at a formal meeting convened by the principal;

B.6.4.2.2 The needs of the institution, more particularly in relation to its specific curriculum obligations, the number of classes, the timetable and the allocation of learners to classes.

B.6.4.2.3 The Circuit / District Manager shall take cognizance of the fact that there is not necessarily a direct relation between the posts identified as in addition and an educator who will be declared in addition, as there may be more than one post with substantially the same duties attached to it;

B.6.4.2.4 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.”

[36] From the above it is clear that B.6.4.2.2 states that needs of the institution
must be considered, more particularly in relation to its specific curriculum
obligations.

[37] Paragraph B6 of the Collective Agreement states the following:
“B6 TRANSFER OF SERVING EDUCATORS IN TERMS OF OPERATIONAL REQUIREMENTS
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 in the grading or classification of an institution,
B.6.1.4 Merging or closing of institutions,
B.6.1.5 Financial constraints.”

[38] There is clearly no limitation placed on the list as B.6.1.1 states that operational requirements are not limited to the list provided in B.6.1.1 to B.6.1.5.

[39] The Circuit Manager testified that the school had too many educators and that was the reason that two educators were declared in excess. To resolve this issue, another educator was transferred to another school and the Applicant was transferred to Manyano High school which was situated in the same area (Khayalitsha) where Usasazo High School was situated. The Applicant was effected as he did not teach grade 12 Geography whilst the other teacher who remained at Usasazo High school was teaching Grade 12 Geography. The school had to make a decision in the best interest of the learners and could not “suddenly” allow the Applicant to teach grade 12 Geography. Grade 12 is a crucial grade for learners. The Circuit manager stated that the Applicant did not have that experience.

[40] I find that the Respondent’s application of the Collective Agreement was correct. The Collective Agreement allowed the Respondent to base a decision on the curriculum obligations of the school.

[41] Based on the evidence led during this arbitration it appears that the Applicant’s actual unhappiness and His dispute with the Respondent has very little to do with the procedures for transfer in terms of the Collective Agreement, but much more to do with the substantive fairness of the transfer. He stated that the transfer caused him inconvenience and that the inconvenience caused by the transfer was that he was trying to get used to the new school and he was spending more on petrol.

[42] My jurisdiction does not extend to determining the fairness of the application of the agreement as I am confined to determining whether the procedures in the resolution had been conformed with. I cannot be expected, nor do I have the power to expand my narrow jurisdiction to consider the substantive merits of the Applicant’s dispute. (reference to the Labour Appeal court authority in the case of Minister of Safety and Security v SSSBC and Others [ 2010] 6 BLLR 594 (LAC) and in Public Servants Association obo Strauss and others v Minister of Public Works N0 and others [2013] 7 BLLR 710 (LC) where the court held at 709-710:
“[17]
Even where a party had referred an interpretation and application dispute to a bargaining council, it was incumbent on the arbitrator to decide what the real dispute was. In Minister of Safety & Security v SSSBC and others the employee applied for a transfer within the South African Police Services (“SAPS”). It was refused. He referred a dispute about the interpretation and application of a collective agreement dealing with SAPS’s transfer policy and procedures to the Safety and Security Sectoral Bargaining Council (“SSSBC”). He challenged the decision of SAPS to refuse his application for transfer. The issue before the LAC was whether the SSSBC had jurisdiction to deal with the dispute. And that issue had to be determined by how the court answered the further question, whether or not the arbitrator correctly classified the dispute before him as one concerning the interpretation and application of a collective agreement. It was accepted by both parties that, if the dispute was a dispute about the interpretation or application of a collective agreement, the SSSBC had jurisdiction in respect of the dispute; but that, if the dispute was about the fairness of the transfer, the SSSBC did not have jurisdiction.”
AWARD

[43] The Respondent’s application of the collective agreement was correct.

Signature: