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30 July 2025 – ELRC1411-24/25WC

Commissioner: Jacques Buitendag
Case No.: ELRC1411-24/25WC
Date of Award: 30 July 2025

In the Arbitration between:

SADTU OBO A PLAATJIE
(Union/Applicant)

and

DEPARTMENT OF EDUCATION WESTERN CAPE
(Respondent)

 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

  1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 10 July 2025 via the digital platform TEAMS.
  2. The applicant, Ms. A Plaatjie was represented by Mr. A van Willingh, an official of NAPTOSA. The respondent, the Department of Education Western Cape was represented by its Labour Relations Officer, Ms. L van der Zandt. The proceedings were digitally recorded.
  3. At the conclusion of the arbitration the parties agreed to submit written heads of argument on 17 July 2025. I consider 17 July 2025 as the last day of the arbitration.

THE ISSUE IN DISPUTE

  1. This dispute concerns the interpretation and application of ELRC Collective Agreement No. 2 of 2024 entitled: “The Appointment and Conversion of Temporary Educators to Post on the Educator Establishment”.
  2. I have to determine whether or not the respondent correctly interpreted and applied the collective agreement when it did not convert the applicant from temporary educator to permanent educator.
  3. If the respondent interpreted or applied the collective agreement incorrectly, I must determine the appropriate relief.

BACKGROUND TO THE ISSUE

  1. The applicant was employed in various temporary posts at Fisantekraal Secondary School as a post level 1 educator since 2022.
  2. The applicant applied to be converted from temporary educator to permanent educator in January 2024. In July 2024 the applicant was advised that certain documents were incomplete / outstanding. The applicant thereafter submitted the outstanding information. The employment contract ended on 31 December 2024 without the respondent converting the applicant to permanent educator.
  3. The applicant was again employed at Fisantekraal High School in 2025, substituting for an educator on maternity leave from 19 February to 18 June 2025. She is currently on contract from 19 June 2025 to 31 December 2025 in a growth post which a non-permanent post.
  4. On 24 March 2025 the applicant lodged a dispute with the ELRC regarding the interpretation and application of Collective Agreement 2 of 2024. On 13 May 2025 the ELRC granted the applicant condonation for the late referral of the dispute. On 2 June 2025 a certificate of non-resolution of the dispute was issued and the dispute was processed for arbitration.
  5. The applicant claims that she was entitled to be converted to permanent educator in 2024. The applicant seeks as relief an order that the respondent convert her from temporary to permanent educator.

SURVEY OF EVIDENCE AND ARGUMENT

  1. The applicant testified and both parties presented bundles of documents into evidence. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings, I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.

The applicant’s evidence and argument

  1. Ms. Plaatjie testified that she taught English FAL at the school in 2024. She applied to be converted from temporary to permanent educator. The respondent advertised the post in March 2024. She then referred a dispute about the advertisement of the post because she believed that she had to be converted to permanent educator. It is common cause that this dispute did not proceed further than conciliation, that no settlement agreement was entered into between the parties and that the union withdrew the dispute. Ms. Plaatjie testified the respondent indicated that it would consider the application for conversion and that this was reason the respondent withdrew the advertisement.
  2. Ms. Plaatjie testified that she applied for conversion and that all the outstanding documents were send to the respondent. Instead of being converted she received notice that her contract will end on 31 December 2024.
  3. In January 2025 she was contacted by the Principal and reported for work. When she was not paid by the respondent in January and February 2025 the School Governing Body lend her some money. The non-payment of salary dispute was subsequently resolved.
  4. The applicant testified that she believes that she was employed in a vacant substantive post and was entitled to be converted from temporary to permanent educator in 2024.
  5. Under cross-examination, the applicant confirmed that she was not the only English FAL teacher. She confirmed that Mr. Phathela and Ms. Mantanga, teach the same subject. The applicant confirmed that Ms. Mantanga is in excess at the school.
  6. The applicant did not dispute WCED circular 0034/2023 read with circular 0008/2024, which permits contract extension only until 31 December 2024 to finalise possible conversions.
  7. The applicant confirmed that the Principal did not inform her that she was in a vacant substantive post. The applicant was referred to the outcome of the application for conversion dated 22 November 2024 which indicates “no vacant post 2024”. The applicant testified that if the outcome was shared with her that she would not have pursued with the dispute in 2025.
  8. Mr. van Willingh argued that the applicant was employed at Fisantekraal Secondary School since 2022 and had a reasonable expectation to be converted to a permanent educator because the educator that she replaced in 2022 was in a substantive vacant post. She was in this post until 31 December 2023. Mr. Van Willingh argued that no one has informed that applicant or the union that the applicant was employed in a growth post. Mr. van Willingh submitted that it was cruel from the Principal / respondent not to inform the applicant that she in a growth post. Mr. van Willingh argued that the applicant was erroneously “put against a growth post” at the time when her application was assessed.

The respondent’s evidence and argument

  1. The respondent did not call any witnesses. Ms. van der Zandt argued that the applicant provided no evidence to prove that she was employed in a vacant substantive post at the time when her application were considered and the outcome of the conversion application on 22 November 2024 shows that the applicant’s conversion was denied because she was not in a vacant substantive post.

ANALYSIS OF EVIDENCE AND ARGUMENTS

  1. In the LAC judgment Western Cape Department of Health and MEC van Wyk and others (CA1/2013) [2014] ZALAC 25 (5 June 2014) at par. 22, Tlaletsi DJP held that in interpreting a collective agreement the arbitrator is to consider the aim, purpose and all the terms of the collective agreement and keep in mind that a collective agreement is not like an ordinary contract. Moreover, since the arbitrator derives his/her powers from the LRA, he/she must at all times take into account the primary objectives of the Act. These objectives are best served by a practical approach to the interpretation and application of collective agreements, which will promote the effective, fair and speedy resolution of disputes. Ultimately the arbitrator must adopt an interpretation and application that is fair to all parties.
  2. Applying the abovementioned principals to this dispute it is important to understand that a collective agreement is first and foremost an agreement between the employer and the union(s) and secondly it is a set of rules which both parties have agreed to follow in the workplace.
  3. Collective Agreement No. 2 of 2024 deals with the appointment and conversion of temporary educators to posts on the educator establishment. The agreement binds the employer, trade union in the education sector and all educators of the employer as defined in the Employment of Educators Act, 1998 (as amended) whether such educators are members of trade union parties to this agreement or not.
  4. The parties have agreed that any dispute arising from the application or interpretation of this collective agreement shall be referred to the ELRC for resolution in terms of the dispute resolution procedures.
  5. Section 6B of the Employment of Educators Act provides that the Head of Department may, after consultation with the governing body of a public school, convert the temporary appointment of an educator appointed to a post on the educator establishment of the public school into a permanent appointment in that post without the recommendation of the governing body.
  6. Annexure A of the Collective Agreement set out:
    • the procedures for appointing temporary educators to a funded substantive and vacant level 1 post at a public school;
    • justifiable reasons for the appointment of a temporary educator;
    • factors to be considered when deciding whether a temporary educator had a reasonable expectation as contemplated in section 186(1)(b) of the LRA; and
    • the requirements, eligibility, procedures and other provisions relating to the conversion of temporary educators.
  7. It is common cause that the applicant applied for conversion in 2024. On the available evidence it appears that all the documents or information were only supplied after the school was informed on 1 July 2024 that certain documents were outstanding.
  8. The applicant has been employed for more than 3 months at the school, she is registered with SACE and she is a citizen of South Africa. On the face of it is appeared that she may have been eligible for conversion. However eligibility is subjected to certain requirements. The first requirement is find in paragraph 4.1 of Annexure A which reads: “This paragraph applies to temporary educators who are appointed on a fixed term contract to a funded, substantive and vacant level 1 post at a public school that is on the approved educator establishment…” This paragraph must be read with paragraph 4.3.1 which reads as follows: “A temporary educator may only be appointed permanently to a funded, substantive and vacant level 1 post as a public school which is on the approved educator establishment.” This encapsulate the 1st requirement for conversion. The Collective Agreement list also other requirements but for the determination of this dispute, it is only necessary to mention this 1st requirement.
  9. Whilst the applicant may have been employed from 2022 to December 2023 in a temporary funded, substantive and vacant post level 1 post, the applicant has not provided any evidence that she was employed in 2024 in a funded, substantive and vacant post level 1 post when the applicant applied for conversion. The People Management Practices System shows that the applicant was employed in a growth post in 2024 which is additional to the staff establishment (Annexure R of the evidence bundle). Mr. van Willingh argued that the applicant may have been incorrectly employed in this post but no evidence was presented to prove his assumption. When a union or educator refer a dispute arising from the application or interpretation of a collective agreement to the council it is not enough to merely claim a breach of the collective agreement, the applicant bears the onus to prove the alleged breach.
  10. The respondent applied the collective agreement to the extent that the applicant’s application for conversion was considered. The conversion was rejected because the applicant was not appointed on a fixed term contract to a funded, substantive and vacant level 1 post on the approved educator establishment in 2024. This fundamental requirement as stipulated in Collective Agreement 2 of 2024 has not been met and the applicant can thus not be converted.

AWARD

  1. I find that the respondent, the Department of Education Western Cape has not interpreted or applied Collective Agreement 2 of 2024 incorrectly when it decided not to convert the applicant, Ms. A Plaatjie from temporary to permanent educator. The application is dismissed.

ELRC Panellist: Jacques Buitendag