IN THE EDUCATION LABOUR RELATIONS COUNCIL

HELD AT BLOEMFONTEIN

Commissioner: Jerome Mthembu

Case no: PSES 381-14/15

Date: 29 January 2015

In the matter between:

SAOU obo J POTGIETER

and

DEPARTMENT OF EDUCATION

Applicant

Respondent

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION:

1. The hearing was held on 25 November 2014. Ms Strydom an official of the SAOU represented the Applicant and Mr Maloka the Respondent.

2. The parties dispensed with oral evidence and agreed to file Heads of Argument as follows:-

2.1 The Applicant on 19 January 2015;

2.2 The Respondent to reply on 23 January 2015;

2.3 The Applicant to reply on 26 January 2015.

THE ISSUE TO BE DECIDED:

3. Whether the Respondent has committed an unfair labour practice by failing to retrospectively confer the Applicant from a temporary educator to a permanent educator from February to June 2014 in terms of the Free State ELRC Agreement 1 of 2009.

BACKGROUND TO THE ISSUE:

4. Ms Potgieter (the Applicant) is an employee of the Free State Education Department (hereinafter referred to as the Employer) as a teacher (PL 1). She studied at UFS and completed a B.Ed (4 years) degree, plus Honns. Degree at the end of 2012 (evaluated as REQV 15 – professionally qualified).

5. She complies with the minimum requirements (REQV 13) for appointment as a teacher. She was appointed as a new entrant into the education sector as a teacher (PL 1) at Nampo Agricultural School in Bothaville.

6. She was appointed in a temporary capacity on a fixed term contract for the period 1 July 2013 until 31 December 2013 and was responsible for the following subjects: Computer Applications Technology Grades 11 – 12, Life Sciences Grades 11 – 12, English Grade 4.

7. In a letter signed on 12 December 2013 a mandate was granted by the employer for the extension of temporary educators where the posts were not declared in excess until the end of June 2014.

8. On a request for the appointment of 5 temporary educators at the school, which included the extension of the Applicant, the principal received a letter from the District Office dated 16 January 2014 informing him that approval for the extension of Ms Potgieter’s extension was granted only until 31 January 2014. Nampo School had no excess posts. No reasons were provided why the Applicant was only extended for one month.

9. On 28 January 2014 the principal requested a further extension of the Applicant’s appointment. He motivated as follows:

“Ms Potgieter is the CAT subject educator and learners would not have an educator in class for five Grade 10 to 12 classes as from 1 February 2014. Currently the school urgently needs five educator posts (own emphasis) to be filled and numerous classes are without educators.”

10. On 29 January 2014 the chairperson of the School Governing Body of the school requested the District Office to appoint Ms Potgieter in a permanent capacity (conversion).

11. Her appointment was not extended with effect from 1 February 2014. At a later stage during February 2014 another new entrant (apparently a bursary holder) was appointed to replace her at Nampo Agriculture School.

12. A grievance for unfair dismissal was lodged on her behalf on 3 February 2014, requesting Ms Potgieter’s continuous extension until 30 June 2014, after which the matter was referred to the ELRC for conciliation and arbitration on two occasions.

13. The Applicant was placed by the employer at DR Sello Primary School and was appointed and remunerated from 6 June 2014 until 31 December 2014. This caused a break in service for the period 1 February 2014 until 5 June 2014.

14. In response to the grievance lodged on 3 February 2014, the Applicant received a letter during August 2014 (dated 15 August 2014) informing her that:

“… The Department has found placement for you at DR Sello Primary School in Viljoenskroon, … I regard this matter as closed …”

15. Although the employer extended the services of the Applicant for January 2014 at Nampo Agricultural School, her salary for January 2014 has up to the current date not been paid. It was reported to the employer, to no avail. Other communication to the employer regarding the Applicant’s situation also remained unanswered.

SURVEY OF THE ARGUMENTS:

APPLICANT’S CASE:

For the purpose of this dispute the following legislation governs processes pertaining to advertising of posts, appointments, redeployment and conversation of temporary educators to permanent.

16. In terms of PAM, Chapter B, par. 3 vacant posts at schools must be advertised in a formal circular/vacancy list.

17. Appointments at schools are made in terms of Section 6 of the Educator’s Employment Act, 1998 (EEA).

18. Section 6(3) of the EEA places an obligation on School Governing Bodies to consider educators who are in excess in a province for appointment in vacant posts if they fit the requirements of the posts.

19. ELRC Collective Agreement 2/2003 governs the process of transferring serving educators in terms of operational requirements (redeployment).

20. Free State ELRC Resolution 2/1009 makes provision for the conversion of educators from a temporary capacity to a permanent capacity under the following circumstances. Par. 4.3 stipulates as follows:

“In future, the conversation of temporary educators appointed in substantive posts will be considered when a temporary educator has been in the service and the post has not been advertised or filled through the process of redeployment of a suitable excess educator in the first 6 months of the appointment.”

21. Mandatory circulars for the extension of temporary educators issued to District offices on a regular basis. For the purposes of this dispute the letters for the period 1 July 2013 until 31 December 2013 and 1 January 2014 until 30 June 2014 are relevant – letters signed by the SG dated 3 June 2013 and 12 December 2013 for the first semester of 2014 are relevant.

22. Mandatory circulars to District Offices with the heading “CONVERSION OF TEMPORARY EDUCATORS INTO PERMANENT POSITIONS” are issued on a regular basis. For the purposes of this dispute the last letter issued and signed by the SG on 5 September 2014 is relevant.

FACTS NOT IN DISPUTE:

23. The Applicant completed a period of 6 months in a substantive vacant post at Nampo Agriculture School on 31 December 2013. During this period no excess educator was identified as suitable for this post and the post was not advertised in terms of PAM, Chapter B, par. 3. She therefore complied with the criteria of FS ELRC Resolution 1 of 2009 for conversation to permanent.

24. In terms of the number of posts allocated to the school for 2014 the school had no excess posts. The Applicant therefore had a legitimate expectation to be extended in terms of the criteria set for the extension of temporary educators for the first semester of 2014 as per the mandate by the SG.

25. The Applicant was not extended for the first semester. She was only extended for one month until 31 January 2014. This was only communicated to the school after a letter was signed on 16 January 2014. Schools re-opened on 14 January 2014. No reasons were provided to the Applicant why her services as an educator had to be terminated at the end of January 2014 whilst the services of other temporary educators were extended until 30 June 2014.

26. From 1 February 2014, the post she occupied was vacant and the learners were without a teacher. The school was apparently given names of bursary holders and was given no option, but to appoint somebody else to replace the Applicant. An appointment was made during February 2014.

27. The Department eventually placed the Applicant at another school, namely D R Sello with effect from 6 June 2014.

28. In a letter dated 3 December 2014 a mandate was provided to District offices to once again extend the services of temporary educators for the first semester of 2015, providing that the posts were not declared in excess, as well as no excess educator was matched against the vacancy. Although the Applicant has to this day not received any written confirmation yet, she has been told by the principal of DR Sello that approval was granted for the extension of the contracts of the temporary educators at DR Sello for the first semester of 2015, i.e. until 30 June 2015. It is her case that this should also have happened at the end of 2013 for 2014. She did assume duty on 12 January 2015 when the schools re-opened.

29. Temporary educators who were employed on 31 January 2014 had in the meantime been converted to permanent positions in terms of a letter signed by the SG on 5 September 2014. Due to the fact that Applicant was not employed for the period 1 February 2014 until 5 June 2014 she was prejudiced also regarding her conversion to permanent compared to other temporary educators who were extended for the first term of 2014.

30. The Applicant has since the dispute was registered, again completed another period of seven (7) months service in a substantive vacant post (from 6 June 2014 until 31 December 2014). She therefore again qualify for conversion to permanent – especially in view of the fact that her contract will apparently be extended for a further period of 6 months until 30 June 2015 – she is still awaiting written approval of this.

31. Apart from this dispute, the Applicant was also a party in two other disputes which involved temporary educators and the issue of conversion to permanent. The details are:

Case PSES 716-13/14 FS SAOU obo Swart, N.L. and 39 others

The dispute was settled on 12 June 2014, the temporary educators who were part of this dispute were converted to permanent in terms of FS ELRC Resolution 1/2009.

32. Case PSES 716 – 13/14 FS SAOU obo Serfontein, S & P Potgieter, I – Non Renewal of a contract.

This dispute was registered during February 2014. On 25 April 2014 during the arbitration meeting the employer undertook to attend to the problem of Ms Potgieter. The dispute of Ms Serfontein was solved. Ms Serfontein was in the meantime reappointed retrospective from 1 January 2014. The transaction on persal was done on 7 April 2014. All outstanding salaries were paid to her. This dispute was withdrawn with the option to re-refer if the case of Ms Potgieter (the Applicant) was not solved.

33. Case PSES 381-14/15 SAOU obo Potgieter 1 (current dispute)

The case of Ms Potgieter (the Applicant) was re-referred to the ELRC for arbitration due to the fact that she was not reinstated in the same manner as Serfontein, S., i.e. retrospective from 1 January 2014 and internal processes were exhausted.

Before the case was re-referred to the ELRC for arbitration, a last attempt was made to solve it. The circumstances of the dispute were fully discussed in the letter to the SG dated 27 May 2014. This explanation to the SG forms the basis of the dispute. No response was received from the employer to retrospectively convert the Applicant from a temporary educator to a permanent educator from February to June 2014 in terms of the Free State ELRC Agreement 1 of 2009.

ARGUMENTS:

34. In par. 3 above applicable legislation which is of relevance to this dispute has been listed. To determine whether the employer’s conduct was unfair towards the Applicant and whether the Applicant had a reasonable expectation to be extended and converted to permanent, it is important to deal with the options which were available to the employer in view of the fact that the province has excess educators.

35. The redeployment of excess educators is not in dispute – it is a given and it is administered by the employer.

36. Resolution 2/2003 governs the transfer of serving educators in terms of operational requirements in all provinces. One option to the employer is to advertise posts which become vacant in a closed vacancy list. Annexure A, par. 2.4 (e) reads:

“1. All vacancies must be advertised …” and “Applications of suitably qualified educators in addition … must be considered before any other applications may be considered.”

“2. A provincial education department may publish a CLOSED VACANCY LIST for which only serving educators in addition may apply.”

The employer has not advertised any Educator (PL 1) posts since 2013. The post the Applicant occupied at Nampo School was at no stage advertised by the employer.

37. Section 6(3)(a) of the EEA places an obligation on School Governing Bodies to consider educators who are in excess in a province for appointment in vacant posts if they fit the requirements of the posts.

38. During the past years, the following process became standard practice in the Free State Province:

· District Offices and/or the Recruitment Section at head office “matches” excess educators with the profiles of vacant posts as submitted by schools.

· Details of “matched” educators are submitted to SGB’s for consideration in terms of Section 6(3)(a) of the EEA.

· Only in instances where no excess educators are identified, approval is granted for the appointment of temporary educators in vacant posts. Temporary educators are appointed for six (6) months periods, namely 1 January – 30 January (first semester) and 1 July – 31 December (2nd semester).

39. Applicant was for the first time appointed for the period 1 July 2013 until 31 December 2013. The employer had two opportunities to identify an excess educator for the post: first option before the Applicant was appointed, and second option during the first six (6) months of her appointment. This did not happen due to the fact that an excess educator was not available for the post. This is proven by the fact that during February a new entrant into education was appointed to replace her. Replacing her with a new entrant, whilst she herself was a new entrant was grossly unfair and in fact could be regarded as an unfair dismissal.

40. Grogan in Workplace Law, 11th edition, Chapter 10, par. 4 writes the following:

“At common law, a fixed-term contract expires automatically on the arrival of the date or occurrence of the event on which the parties agreed that the contract would terminate. Under the LRA, employees are deemed dismissed when they ‘reasonably expected” their employers to renew a fixed-term contract of employment on the same or similar terms, or to employ them permanently. See: University of Pretoria and CCMA, Case J 1031/08.”

41. FS ELRC Resolution 1/2009 has been applied since 2009 to convert temporary educators to permanent, provided that they comply with the criteria stipulated in the resolution. (See: par. 3.5 above). The employer can during the first six (6) months of employment, still identify an excess educator. If this happened, the contract of the temporary educator would not be extended. No excess educator was identified for the post occupied by the Applicant up until 31 January 2014 and also not thereafter. In such cases the temporary educators are at a given time converted to permanent.

42. The conversion of temporary educators to permanent has become a vested practice within the Free State Province and thousands of temporary educators have been converted to permanent since 2009. According to evidence, the principal of Nampo School followed the prescribed processes for filling five (5) vacant posts for January 2014.

43. In a letter dated 6 January 2014 the principal wrote:

· “The approval for appointment of three temporary educators is outstanding from the department.

· Approval for the appointment of another two educators was given but clarity on the type of posts is still being awaited from the HR office. The process of appointing educators can not continue until this information is available.

· Starting classes on 14 January 2014 without 5 educators and two classrooms will lead to situations where teaching and learning will be chaotic and unacceptable. In consultation with the SGB if has been decided that certain grades will be requested to not attend school until the situation is resolved.”

44. It is evident that the school at the end of 2013 had 5 posts to fill for January 2014. The option for the employer was to identify excess educators for these posts. The Applicant occupied the one post until 31 December 2013. The principal was waiting for information of excess educators for the vacant posts, and approval for the extension of the Applicant for the first semester of 2014. Due to no response from the District Office, he referred the matter to the SAOU for assistance.

45. On 14 January 2014 an urgent e-mail was sent to the office of the HOD. The union wrote:

“The school has 5 vacant posts – apparently they are waiting for approval to be allowed to fill these posts. Regarding the one temporary educator (own emphasis) who should be extended – no written approval has been provided with suitable other candidates for these posts. The school was also not in a position to recruit available educators for these posts. The school was also not in a position to recruit available educators for these vacant posts, due to the fact that they had to follow the prescribed procedure.”

No response was received from the office of the HOD, but from the response received from the District Director, it was clear that he was very unhappy about the fact that the principal brought the matter to the SAOU for assistance.

46. The result of the union’s intervention in the school’s problem with the District Director, was a letter to the principal of Nampo School dated 16 January 2014 according to which approval was granted to extend the services of the Applicant “… until the end of January 2014.”

47. This decision of the District Director contradicted the instruction of the SG of the Department (the employer) as given per circular to District Directors for the extension of the temporary educators for the first semester of 2014, namely:

“Approval is hereby granted for the extension of temporary educators in substantive posts – and where the posts were NOT declared in ‘excess’ – until the end of June 2014”.

48. In terms of this mandate other temporary educators who qualified were extended for the first semester of 2014. The reason for this mandate, as in the past, is found in par. 2 of the letter, namely:

“The decision is only taken with a view to stabilize learning and teaching in the first and 2nd school terms, but it may have serious implications on the compensation budget which is already under severe pressure.”

49. By appointing a new teacher in the post, the District Director acted outside the mandate provided and in the process the Applicant was seriously prejudiced. It could be regarded as an unfair dismissal.

50. It is the Applicant’s case that no reasons existed why her contract was only extended until end of January and not until 30 June 2014. It is furthermore her case that the District Director acted outside his mandate for reasons only known to him. It is her case that he probably felt offended by the fact that the principal of the school approached the SAOU for assistance.

51. The effect of this decision has another detrimental effect on the Applicant. She is now not included in the mandate for conversion to permanent in terms of the letter dated 5 September 2014 from the office of the SG for the conversation of all temporary educators to permanent in terms of Resolution 1 of 2009 who were employed on 1 January 2014. It is important to note par. 3 of this letter. It reads:

“In view of the above, the department is obliged to honour the requirements of the resolution.”

52. It is clear that although the employer (the SG) in the circular clearly accepts the fact that Resolution 1/2009 is a binding document, the District Director violated the obligation of the Department with regard to the Applicant. It can only be regarded as gross misuse of power. This should not be allowed. What is even of greater concern, is the fact that the SG of the Department was not prepared to take any action to correct this, but blatantly turned a blind eye on the matter.

53. To further prove the inconsistency and unfair conduct of the employer towards the Applicant, the Commissioner is again referred to the settlement agreement of dispute Case PSES 707-13/14 FS SAOU obo Serfontein and Potgieter.

54. It is the Applicant’s case that she had a right to be treated in the same manner as Serfontein, S. As stated in the settlement agreement, it was confirmed that Serfontein was indeed extended, retrospective from 1 January 2014, but Applicant not. Serfontein is employed at Brentvale Primary School – a school in the same district as the Nampo School – namely Fezile Dabi District. The same District Director was involved.

55. A further serious transgression on the part of the employer is the fact that although approval was granted for the Applicant’s extension until 31 January 2014 and she rendered a service from the first school day of the year, this appointment was not implemented on the salary system (Persal). No salary was paid to her for January 2014 for services rendered at Nampo School. Efforts to solve this problem also remained unattended. This was also reported to the SG – but remained unsolved.

CONCLUSION:

56. It is the Applicant’s case that the employer did not only violate its own policies and instructions when her temporary appointment was extended for only one (1) month, but acted grossly unfair and inconsistent towards her.

57. Her right in terms of Section 33 of the Constitution to administrative action which is lawful, reasonable and procedurally fair was grossly violated, especially when compared to what happened at the same time to other temporary educators in similar circumstances in the Free State Province.

58. The Promotion of Administrative Justice Act 3 of 2000 (PAJA) Section 31 stipulates as follows:

“Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.”

59. The Applicant is of the opinion that the District Director’s decision to extend he services for only one (1) month, was not taken for a fair reason, but for an ulterior purpose or motive.

60. Given all the circumstances which prevailed at Nampo School at the end of 2013, it is the Applicant’s case that in terms of the FS ELRC Resolution 1 of 2009, she in all aspects qualified for extension for the whole of the first semester as per the mandate provided by the SG of the Department.

61. If that had happened, she would also have qualified for conversion to permanent in terms of the mandate dated 5 September 2014, indicating that those employed for 6 months on 31 January 2014 may be converted to permanent. She was indeed employed on 31 January 2014.

62. Her placement at D R Sello Primary School with effect from 6 June 2014 should have been the same as in the case of S. Serfontein – retrospective from 1 January 2014.

63. The Applicant’s plea is that the Commissioner would agree that the employer did not honour the stipulations of FS ELRC Resolution 1/2009, nor its own instructions regarding extension of temporary educators with effect from 1 January 2014.

64. The Applicant’s plea is for the following order:

64.1 That she be reinstated retrospectively in the post she currently occupies at Dr Sello Primary School in the same manner as Serfontein S – retrospective from 1 January 2014.

64.2 That all outstanding monies due to her (which will include outstanding salaries and benefits for which she qualified for the period 1 January 2014 until 5 June 2014), plus interest be paid to her.

64.3 Alternatively – compensation to the amount of her salary for the period 1 January 2014 until 5 June 2014, plus the 37% allowance as per PSCBC Resolution 1/2007, plus interest.

64.4 The order to be complied with within fourteen (14) days of the award.

RESPONDENT’S CASE:

65. The Applicant sought to be converted permanent as she was hired on a six (6) months fixed term contract from June 2013 to December 2013 and the Department had not conform with Resolution 1 of 2009.

66. The Applicant was extended for one (1) month in January 2014.

67. It is the Applicant’s case that there was a circular to extend all temporary educators.

68. The Respondent holds the view that they have always conformed with the provisions of the Free State ELRC collective agreement no. 1 of 2009.

69. Section 4 of the collective agreement dictates that conversion of such will be under the following conditions:

“4.3 In future the conversion of temporary educators appointed in a substantive post will be considered when a temporary educator has been in the service and the post has not been advertised or filled through the process of redeployment of a suitable excess educator in the first six (6) months of the appointment.”

70. Redeployment process is defined within the provision of the ELRC collective agreement 2 of 2003 (transfer of serving educators in terms of operational requirements).

71. Section 2.4(e) of the abovementioned collective agreement states:

“The following procedure shall be followed in filling vacancies in cases where the department has educators in addition of a staff establishment.

1. All vacancies must be advertised and filled in terms of paragraph 3 (The advertising ad filling of Educator Posts).

2. A provincial education department may publish a CLOSED VACANCY LIST for which only serving educators in addition may apply.”

72. Conversions of temporary educators to permanent employment status is therefore guided by the provisions of the Free State Collective Agreement 1 of 2009 that stipulates that “conversion of temporary educators appointed in a substantive post will be considered when a temporary educator has been in the service and the post has not been advertised or filled through the process of redeployment of a suitable excess educator in the first six (6) months of the appointment.”

73. The agreement relates to conversion of temporary educators in 2013.

74. The process is fair and legal only when it conforms with the provisions of ELRC National Collective Agreement 2 of 2003 that guides redeployment.

“1. All vacancies must be advertised and filled in terms of paragraph 3 (The advertising and filling of Educator Posts).

2. A provincial education department may publish a CLOSED VACANCY LIST for which only serving educators in addition may apply.”

75. The Respondent’s further view is that in the period of 2013 it advertised three closed vacancies for placement of excess educators.

76. The implications of these adverts in terms of Free State ELRC collective agreement 1 of 2009 is that the six (6) month periods had been tampered with, as they do not qualify.

77. The Department of Free State also has an obligation to the students who are bursary holders with the Department.

78. Recipients of these bursaries will be required to teach at a public school for the same number of years that they receive the bursary.

79. It is then when matching and redeployment has been completed that priority is given to the bursary holders before any further extension of temporary educators on vacant substantive post.

80. It is not automatic that if an educator is on a six (6) month fixed term on a vacant substantive post qualifies for conversion.

81. It is the view of the Respondent that both Respondent and Applicant entered into an agreement quite knowing that the conversion is in relation to ELRC National Collective Agreement 2 of 2003 read with Free State ELRC Collective Agreement 1 of 2009.

82. The Applicant’s post was not extended beyond January 2013 and this was purely in line with the policy of redeployment and matching first of the candidates in the employ of the Department as well as the bursary holders.

83. The Applicant was appointed from June 2014 to December 2014 on an ad hoc post at D R Sello Primary School.

84. The post only became vacant and substantive from January 2015 and she is currently on extension of this vacant post until June 2015.

85. She will only be converted to permanent if dictates of ELRC National Collective Agreement 2 of 2003 read with Free State ELRC collective agreement 1 of 2009 apply.

86. There is further no evidence that the Respondent failed to apply its principles and policies correctly.

87. The Applicant has not proved her case and it will be difficult for the council to award in favour of the Applicant.

88. What has the Respondent failed or done to encroach its policies.

89. PEPCOR RETIREMENT FUND AND ANOTHER v FINANCIAL SERVICES BOARD AND ANOTHER [2389] 12 BLLR 1170 (SCA) Cloete JA held:

“In my view, a material mistake of fact should be a basis upon which a Court can review an administrative decision. If legislation has empowered a functionary to make a decision, in the public interest, the decision should be made on the material facts which should have been available for the decision properly to be made. And if a decision has been made in ignorance of facts material to the decision and which therefore should have been the functionary who made it – even although the functionary may have been guilty of negligence and even where a person who is not guilty of fraudulent conduct has benefited by the decision. The doctrine of legality which was the basis of the decisions in Fedsure, SARFU and Pharmaceutical Manufacturers requires that the power conferred on a functionary to make decisions in the public interest, should be exercised properly, i.e. on the basis of the true facts, it should not be confined to cases where the common law would categorise the decision as ultra vires.”

ANALYSIS OF THE ARGUMENTS:

90. Having considered the parties’ submissions I am of the view that the real dispute is not compliance by the District office with a directive of the Superintendent General (HOD) dated 12 December 2013.

91. In terms of the above directive approval was granted for the extension of temporary educators in substantive posts and where the posts were not declared in “excess” until the end of June 2014.

92. Therefore by extending the Applicant’s appointment for one (1) month only i.e. for January 2014 only, in violation of the above superintendent general’s directive, the District Director acted ultra vires.

93. The District Director did not have the powers to ignore or not implement to the letter the above directive.

94. I am therefore of the view that the Respondent would have committed an unfair labour practice against the Applicant by failing to adhere and implement the above directive.

AWARD:

95. The Respondent has committed an unfair labour practice against the Applicant.

96. The Respondent is ordered to retrospectively extend the Applicant’s temporary appointment from February to June 2014.

97. There is no order for costs.

________________________

JEROME MTHEMBU

ELRC PANELIST