IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION HEARING HELD VIRTUALLY

Case Ref No: ELRC1178-24/25MP
Commissioner: Moraka Abel Makgaa
Date: 26 August 2025

In the matter between:

National Teachers Union obo Khwela Nokuphila Applicant

And

Mpumalanga Department of Education Respondent

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION
1 The matter was heard virtually on 20 March 2025, 20 May 2025 and concluded on 30 July 2025. The Applicant was always present and represented by Mr Njabulo Mtolo, the Case Handler/ Full-Time Shopsteward from the National Teachers Union (“NATU”).
2 On 20 March 2025 the Respondent was represented by Mr Shiyinduku Twala, employed by the Respondent as the Assistant Director: Collective Bargaining, Labour Relations Directorate. Mr Twala was replaced by Ms Frieda-Marie Rieger, who is employed by the respondent as the Assistant Director: Grievance and Dispute Resolution.
3 The interpretative services in IsiZulu were offered by Mr Skhumbuzo Luthuli, the Part-Time Language Practitioner/ Interpreter of the LRA.The proceedings were conducted in English. They were recorded both manually digitally.

ISSUE TO BE DECIDED
4 I am required to determine whether the Applicant’s employment should have been converted to permanent employment. If yes, I am required to determine the appropriate remedy.

FACTUAL BACKGROUND
5 The Applicant was amongst the candidates who applied for a vacant and substantive PL1 educator post Sibukosethu Primary School. She was the successful candidate. The Applicant and the Respondent entered into a three-month fixed-term contract of employment commencing on 13 October 2023 until 31 December 2023.
6 On 26 January 2024 the Applicant, the Principal and Chairperson of the School Governing Body (“SGB”) completed and signed FORM EDU 4: NOTICE OF ASSUMPTION OF DUTY/RESUMPRION OF DUTY. The Circuit Manager signed it on 05 February 2024.
7 On 12 February 2024 the Applicant, the Principal and Chairperson of the SGB completed and signed the FORM EDU 8: NOTICE OF EMPLOYMENT OF AN EDUCATOR WHOSE PREVIOUS TEMPORARY CLOSED EMPLOYMENT CONTRACT EXPIRED AT THE SAME SCHOOL (hereinafter to be referred to as the First FORM EDU 8). The Circuit Manager signed it on 20 February 2024. It is stated that the contract expiry date is 31 December 2023. The date of acceptance of temporary closed employment by the Applicant is specified as being 15 January 2024.
8 Another FORM EDU 8 (“the Second FORM EDU 8”), containing information which is identical to the information in the First FORM EDU 8, was completed and signed by the Applicant, the Principal and Chairperson of the SGB on 06 December 2024, and by the Circuit Manager on 11 December 2024. It is stated that the contract expiry date is 31 December 2023. The date of acceptance of temporary closed employment by the Applicant was specified as being 01 January 2024.
9 The Applicant’s dispute of interpretation and/or application was referred to the ELRC for conciliation on 29 January 2025. The matter was conciliated by my colleague, Commissioner Lesley Martin, on 18 February 2025. The dispute could not be resolved. A certificate of outcome was issued certifying the matter as being unresolved.
10 The matter was referred for arbitration. It served before me, for the first time, on 20 March 2025. I assisted the parties to draw up pre-arbitration minute. I also assisted the parties to draft a settlement agreement. The Applicant and her union representative signed both the pre-arbitration minute and the settlement agreement on the first day of the same day.
11 The Respondent’s representative, Mr Shiyinduku Twala, requested to be given the opportunity to engage with his principals for purposes of obtaining a mandate to sign both the pre-arbitration minute and the settlement agreement. I issued both oral and written directives pertaining to the time frames within the consultation should be concluded.
12 I specifically directed that in the event of the Respondent’s representative failing to obtain a mandate to sign the settlement agreement, the parties must file their written heads of arguments by no later than 14 April 2025.
13 On 31 March 2025 Ms Frieda-Marie Rieger served and filed the signed pre-arbitration minute with the ELRC. The issues identified as common cause facts included the fact that the Applicant qualified for conversion during January 2024.
14 It was also agreed that there are no disputes of facts as well as legal disputes between the parties in this matter. It was further agreed that there would be no need for oral evidence to be led since there are no disputes of facts between the parties.
15 The replacement of Mr Shiyinduku Twala with Ms Frieda-Marie Rieger brought with it disputes of facts of a material nature. The disputes of facts were clearly introduced to support the argument that the Applicant was not eligible for conversion.
16 It was contended the Applicant was disqualified by the fact she had either occupied a vacant and substantive PL1 educator post for a period of less than three months or because she was, as from January 2024, appointed against a vacant post of a Departmental Head. It was because of the introduction of these disputes of facts that I directed that the matter must be set down for oral evidence.
17 The parties agreed that the bundle of documents submitted by the Respondent would be used as a joint evidence bundle. The joint evidence bundle is marked as Annexure “MDOE”, and it is made up of 92 pages. The parties were given until 08 August 2025 to submit their written closing arguments. I wish to confirm receipt of the parties’ written submissions, which have been taken into account in this matter.

SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
18 Nokuphila Khwela, who is the Applicant in this matter, testified under oath and her evidence can be summarised as follows. She applied for an advertised post at Sibukosethu Primary School and was the successful candidate. The post she occupied was vacant and substantive both during 2023 and 2024.
19 During 2023 and 2024 she together with the school principal and the chairperson of the School Governing Body signed a number of documents which are included in the joint evidence bundle.
20 Under cross examination, she conceded that her contract of employment came to an end on 31 December 2023. She also agreed that during 2023 she worked for a period of less than three (3) months.
21 Under re-examination, she testified that in January 2024 she reported for duty when schools reopened, and continued to teach the same subjects she taught during 2023. She insisted that she met the requirements for conversion during January 2024.
22 Sibusiso Bernard Shakwana’s testimony, which was given under oath, can be summarised as follows. He is NATU’s National Negotiator and its Chief Negotiator for the Mpumalanga Province. Regarding the employment of the Applicant, he testified that the EDU Form 8 is completed when an educator is employed in a vacant and substantive post as well as when the contract of employment is to be renewed. This was the form which was employed for the employment of the Applicant both during 2023 and 2024.
23 By signing the EDU 8 Forms, the Principal, the Chairperson of the SGB and the Circuit Manager were confirming that a vacant and substantive post was available for the appointment of the Applicant.
24 Under cross examination, he conceded that as at 31 December 2023 the Applicant did not complete a period of at least three months continuous service. He disagreed with the proposition which sought to suggest that there was a break in service on the basis that the 2023 contract of employment expired on 31 December 2023 and that a new contract was concluded on 15 January 2024.
25 His explanation was that in terms of the recruitment process in the Mpumalanga Department of Education, vacant posts are advertised, which was not done when the Applicant was engaged in January 2024.
26 He insisted that when the 2024 final staff establishment was issued on 25 March 2024 the Applicant had already qualified for conversion. He further testified that the Applicant should have been converted and thereafter be dealt with in terms of Collective Agreement 4 of 2016 because of the fact that the 2024 final staff establishment shows that the 17 PL1 educator posts were decreased to 14 posts.
27 Under re-examination, he testified that the EDU Form 8 is also used when it comes to renewal of an existing contract of employment. He further testified that the Applicant was again recommended for conversion even after the PPN of 2024 was issued.

SURVEY OF THE RESPONDENT’S EVIDENCE AND ARGUMENT
28 Willem Adam Bernard testified under oath, and his evidence can be summarised as follows. He is employed by the Respondent as the Head of Education Management Information System (“EMIS”). He has occupied this position since 2002. Their duties and responsibilities of the officials in EMIS section include releasing staff establishments to schools.
29 The standard procedure is that preliminary staff establishments are issued to schools before final staff establishments could be issued. He confirmed that the document on page 21 of the joint evidence bundle is the 2023 staff establishment which was issued to Sibukosethu Primary School, in terms of which the school was allocated 17 PL1 educator posts.
30 He further testified that when the Applicant’s contract of employment was renewed on 15 January 2024 the school had a vacant and substantive post based on the preliminary staff establishment. According to the 2024 final staff establishment which was issued on 25 March 2024, the school was allocated 14 PL1 educator posts. The Applicant was, because of the decreased number of PL1 posts, carried additional to the establishment.
31 The Applicant did not meet the requirements for conversion because of the following reasons. Firstly, the 2023 contract of employment was less than three (3) months. Secondly, there was a break in service from the period 01 January 2024 to 14 January 2024. Thirdly, when the Applicant was employed with effect from 15 January 2024 there was no vacant and substantive post.
32 He further testified that the recommendation for conversion of the Applicant which was made during July 2024 cannot be recognised because it was made after the final staff establishment was issued.
33 Under cross examination, he made conceded that at the time of appointment of the Applicant in January 2024 there was a vacant and substantive post at the school. He further conceded that the Applicant’s PERSAL print out does not indicate that there was any termination either during December 2023 or January 2024.

ANALYSIS OF EVIDENCE AND ARGUMENT
34 Section 24(1) of the Labour Relations Act 66 of 1995 (“LRA”) provides as follows:
“Every collective agreement excluding an agency shop agreement concluded in terms of section 25 or a closed shop agreement concluded in terms of section 26 or a settlement agreement contemplated in either section 142A or 158 (1) (c), must provide for a procedure to resolve any dispute about the interpretation or application of the collective agreement. The procedure must first require the parties to attempt to resolve the dispute through conciliation and, if the dispute remains unresolved, to resolve it through arbitration”.
35 Clause 68 of the ELRC Constitution deals with interpretation and application of Collective Agreements, and it provides as follows:
“A party to a dispute about interpretation or application, or non-compliance with any Collective Agreement including the provisions of the BCEA may refer such dispute to conciliation and arbitration in terms of these procedures”.
36 In National Union of Construction Workers v Oranje Mynbou en Vervoer Maatskapy Beperk , the Labour Court said the following about “enforcement” of a collective agreement:
“Whether a dispute about the “application” of a collective agreement, referred to in section 24(1) of the Act, would include the enforcement of a collective agreement when it is breached, is a further question which needs to be decided.
Enforcement of an agreement only becomes an issue when there is some form of non-compliance with that agreement. When a party wishes to enforce the agreement, it would be, at least inter alia, because it believes the agreement is applicable to the party who is in breach thereof. Therefore a “dispute about the application of a collective agreement” (section 24(1) of the Act) applies to the situation where there is non-compliance with a collective agreement and one of the parties wishes to enforce its terms. Consequently, the CCMA, and not the Labour Court, should entertain disputes arising from the non-compliance with collective agreements”.
37 In the instant case, the Applicant is aggrieved by the Respondent’s failure or refusal to convert her temporary employment to permanent employment in terms of the relevant provisions of the ELRC Collective Agreement 4 of 2018 read with the ELRC Collective Agreement 2 of 2024 (to be referred to, collectively, as the two Collective Agreements”).
38 The two Collective Agreements contain several provisions which deal with the requirements, eligibility and procedures to be followed in connection with the appointment and conversion of a temporary educator. In the instant case, it was common cause between the parties that the Applicant met all the requirements for conversion except those which were introduced by the Respondent after the signing of the pre-arbitration minute. It is against this background that I will only focus on the provisions which are relevant to the issues and facts in dispute.
39 It is important to reiterate the fact that the parties concluded and signed pre-arbitration minute in terms of which it was, amongst others, agreed that there are no disputes of facts as well as legal disputes between the parties. It was also agreed that there would be no need for oral evidence to be led in the light of the fact that there were no disputes of facts.
Whether the Applicant satisfied the requirement relating to the continuous period of at least three months
40 The following provisions of the two Collective Agreements are relevant to the facts and issues in dispute:
“4.2. Eligibility 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”.
41 During the arbitration proceedings on 30 July 2025 the Respondent’s representative introduced the second aspect of the Respondent’s defence which sought to suggest that the Applicant was appointed in terms of two separate fixed-term contracts of employment, both of which fell short of the “continuous period of at least three months” contemplated in the two Collective Agreements.
42 The first contract was said to have commenced on 13 October 2023 and expired on 31 December 2023 whereas the second contract was said to have commenced on 15 January 2025. It was also suggested that the period 01 January 2024 to 14 January 2024 constituted a break in service.
43 It was further suggested that the “continuous period of at least three months”, when it comes to the second contract, was interrupted by the coming into operation of the 2024 final staff establishment.
44 During November 2023 the Respondent issued a Circular referred to as the Revised HRM Directive No 20 of 2023: Translation of contract educators to permanent, renewal of contracts for contract educators for the 2024 academic year, and appointment of new contract educators in the 2024 academic year (“the Revised HRM Directive No 20 of 2023”), which was signed by the Respondent’s Head of Department on 29 November 2023.
45 The definitive answer to the Respondent’s propositions regarding the issue of the “continuous period of at least three months”, lies in paragraph 2 of the Revised HRM Directive No 20 of 2023, which, in the relevant part, provides as follows:
“Renewal of contract for educators for the 2024 academic year
(a) The contracts for all contract educators appointed in the system are expiring on 31 December 2023;
(b) The Department has taken a decision to renew contracts for all qualifying contract educators where there is post(s) available as from 01 January 2024 until 31 December 2024”.
46 The decision of the 29 November 2023, on any reasonable interpretation, meant that the fixed-term contracts of educators such as the Applicant were renewed from 01 January 2024 until 31 December 2024.
47 I am of the view that there is no merit in the proposition that a second contract of employment was entered into by and between the Applicant and the Respondent with effect from 15 January 2024. There is no doubt that this proposition is based on the fact that the information in the First FORM EDU 8 shows that 15 January 2024 was the date of actual assumption of duty by the Applicant.
48 It is clear that the information on both the First FORM EDU 8 and Second FORM EDU 8 is identical in all respects except in respect of the date of actual assumption of duty. It is also important to indicate that both Forms were concerned with renewal of the Applicant’s fixed-term contract which expired on 31 December 2023.
49 When construed within the context of the Head of the Department’s decision of 29 November 2023, the only logical conclusion is that it is the Second FORM EDU 8 which should take precedence over the Second FORM EDU 8. Put differently, it is the Second FORM EDU 8 which we should concern ourselves with because it is consistent with the decision of the Head of Department.
50 I am of the view that the First FORM EDU 8 is also problematic in the sense that it is a notice of renewal of the fixed-term contract which expired on 31 December 2023 and not necessarily a fully-fledged contract of employment. Even if it could be argued that it constituted a valid contract of employment, the problem is that it would not take precedence over the decision of the Respondent’s Head of Department neither would it be capable of varying the decision of the Head of Department.
51 The Respondent’s propositions relating to the theory of an interrupted or break in service for purposes of the “continuous period of at least three months” must be rejected because they have no foundation, both in fact and in law.
52 It is my finding that the Applicant attained the “continuous period of at least three months” contemplated in the provisions of the two the Collective Agreements during the month of January 2024. In other words, the Applicant attained the “continuous period of at least three months” before the 2024 final staff establishment could come into operation.
Whether the Applicant was occupying a vacant and substantive PL1 educator post during the 2024 academic year
53 The question whether the Applicant was, as from January 2024, occupying a vacant and substantive PL1 educator post, should be answered in the affirmative. In the first instance, it was the Respondent’s witness who, both during examination-in-chief and during cross examination, testified that the 2024 final staff establishment came into operation as from 25 March 2024. He further testified that Sibukosethu Primary School had a vacant and substantive PL1 post based on both the 2023 staff establishment and the preliminary staff establishment relating to the 2024 post provisioning.
54 It is my finding that at the time when the Applicant attained the “continuous period of at least three months” she was still occupying a vacant and substantive PL1 educator post. In short, the main issues in dispute, which are at the heart of the Respondent’s defence, must be decided against the Respondent.
55 To reiterate, my finding is that at the point when the 2024 final staff establishment came into operation, as well as when the Applicant was appointed against a vacant post of Departmental, too much water had already gone under the bridge. It is therefore immaterial whether the Applicant was appointed against a promotional post as a result of the implications of the 2024 final staff establishment.
56 In conclusion, it is my finding that the Applicant met all the requirements associated with eligibility for conversion. She is therefore entitled to the substantive relief she is seeking. In the circumstances, I do not see any justifiable reason why the Applicant must not be deemed to have been appointed on a permanent basis during the month of January 2024.
57 In Biggs v Rand Water , the Labour Court said the following about the purpose of section 186(b) of the Labour Relation Act 66 of 1995:
“Section 186(b) was included in the LRA to prevent the unfair practice of keeping an employee in a position on a temporary basis without employment security until it suits the employer to dismiss such an employee without the unpleasant obligations imposed on employers by the LRA in respect of permanent employees”.
58 The ratio decidendi in Biggs v Rand Water appears to find expression in sub-paragraphs 1.2 of Collective Agreements No 4 of 2028 and No 2 of 2024, which provides that the purpose of the agreement is to “provide for employment security of temporary educators”.
59 I am of the view that, in the circumstances, the Respondent’s failure or refusal to convert the Applicant’s temporary employment to permanent employment did not only constitute an unjustifiable breach of the relevant provisions of the two Collective Agreement, but the Respondent’s conduct had unfairly kept the Applicant in a temporary capacity without employment security for an unreasonably long period.

AWARD
60 The Respondent, Mpumalanga Department of Education, is ordered to take all the necessary measures to ensure that the temporary employment of the Applicant, Nokuphila Khwela, is converted to permanent employment.
61 The process of conversion of the Applicant’s employment must be undertaken without undue delay and should be finalised by no later than 31 August 2025.

DATED AND SIGNED AT POLOKWANE ON THIS 26TH DAY OF AUGUST
2025.

MORAKA ABEL MAKGAA
(ELRC PANELIST)