IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MAHIKENG

Case No: ELRC737-23/24NW

In the matter between

SAOU obo THOM HOLTZHAUZEN Applicant

and

DEPARTMENT OF EDUCATION; NORTH WEST PROVINCE Respondent

PANELLIST: Pieter Greyling
AWARD: 25 OCTOBER 2024

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration and in limine proceedings were conducted on a virtual platform on 26 March 2024, 12 June 2024, 27 August 2024 and 11 October 2024. At all times during the proceedings the Applicant was represented by Dr J Kruger, an official of the referring trade union. The Respondent was represented by Mr D Seakgosing, an official.

ISSUE TO BE DECIDED

2. The Applicant, during the first part of 2023 applied in terms of Collective Agreement 4 of 2018 (“the Agreement”), to convert his temporary appointment as an educator teaching electronics to that of a permanent appointment. The Respondent considered the application but concluded that the Applicant’s qualifications does not entitle him to be appointed on a permanent basis. It is to be decided whether the Respondent’s decision not to convert the Applicant’s temporary appointment to that of permanent constitutes an unfair labour practice as envisaged in terms of Section 186(2)(a) of the Labour Relations Act, 66 of 1995 (“LRA”).

3. The Applicant presented an electronic bundle of documents (Bundle A) consisting of 26 documents marked A – Y and a document marked as a Grade 12 certificate. In the application for condonation the Applicant also referred to a number of documents marked A to G. Reference to these documents will be made in the following manner Aff _. Reference to the other documents will be made as follows: Bundle A, doc__. The Respondent did not present a bundle of documents.

BACKGROUND TO THE DISPUTE

4. The Applicant, Mr T Holtzhauzen was initially appointed at the Wagpos High School (“the School”) in October 2021, teaching electronics. The appointment was on a temporary basis, which appointment was renewed in January 2023 to last until December 2023. During 2023, an application was made by the School to convert the temporary appointment of the Applicant to a permanent appointment as provided for in Annexure A, Clause 4 of the Agreement. The Respondent initially approved in October 2023 the conversion, but almost immediately thereafter retracted the approval indicating that it was erroneously made. It is the submission of the Applicant that the decision not to convert his appointment constitutes an unfair labour practice relating to benefits.

EVIDENCE AND ARGUMENTS BY THE PARTIES
Evidence on behalf of the Applicant

5. The first witness for the Applicant was Mr CJ Combrinck. The following can be highlighted from his testimony:

5.1 The witness is involved in special school education since 1983. He started his career at a, what was then called, “clinic school”. His final appointment was as Principal of the Oom Paul School, which appointment he held for 10 years. He also served in the position of Deputy Principal for a period of 18 years.

5.2 Special Schools cater for children who have moderate to mild intellectual difficulties. The curriculum consists of 50% vocational training and 50% academic classes. Learners who have successfully completed this curriculum, may enroll in a TVET college to be trained in vocational skills, such as welding.

5.3 In the special school environment, the Department makes use of fully qualified (University) educators as well as non-qualified educators who teaches practical skills. University graduated educators are not qualified to teach practical subjects such as panel beating or hairdressing. To qualify for an appointment the Personnel Administration Manual (“PAM”), requires the minimum qualification of a N3. He further stated that it was general practice in such schools to appoint non-professionally qualified educators to teach practical subjects. The witness provided examples of four individuals (Bundle A, doc “S”; “T”; “U” & “V”), as instances where non-professional educators with qualification category REQV 13 has been appointed as permanent educators in terms of the Agreement.

5.4 The witness then also explained the difference in respect of qualifications categories REQV 12 and 13 as provided for in the PAM. He described the distinction between the two categories as follows: to qualify for REQV13 the individual must have a grade 12 certificate and to qualify as an artisan, the particular individual must have an N4 qualification, which in practical terms entails four years practical training and the completion of the required trade tests. He further pointed out that the qualifications obtained are evaluated by the Department of Higher Education and Training. Based on this evaluation, a REQV allocation is done. In this particular instance, and because of the fact that the Applicant has a senior certificate (grade 12) and an N4 qualification, it was assessed as a REQV 13 that, although not professionally qualified, he can teach the technical subject of his trade. The mentioned Department evaluated the Applicant’s qualifications in August 2011 (Bundle A, doc “K”).

5.5 On this basis SACE issues a certification, which reflects that the Applicant in this particular instance is registered “To teach in the Technical and Vocational Educational and Training (TVET) Sector”.

5.6 It was further pointed out by the witness that with regard to post level I vacancies, that these posts are not advertised in any gazette. Schools recruit in terms of prescribed procedures and all appointments are made on a temporary basis by the Department. After three months, an application can be made to convert the temporary appointment into a permanent one, subject to certain conditions.

5.7 Under cross-examination, the witness confirmed that the Oom Paul Skool is a special needs school while the Wagpos High School is a comprehensive school with a technical stream. The witness further, with reference to the qualification evaluation states that the Applicant has a REQV 13 qualification and as reflected in the evaluation, only lectures in Electrical Technology. The witness further submitted that the Applicant has the necessary post matric qualifications.

6. The second witness to testify was the Applicant, Mr Thom Holtzhauzen. The following can be highlighted from his testimony:

6.1 The Applicant matriculated in 1982 at a technical high school. After school, he joined the South African Air Force. Since he had a grade 12 from a technical high school, he has a N2 qualification. He then completed the required subjects to advance to an N3 and an N4 qualification during the period 1985 to 1988. He then had to appear before a selection board to be allowed to do the practicals and he completed his trade test in 1988. He resigned from the Air Force in 1991. He thereafter occupied a number of positions in the private sector, dealing with electrical instruments, facilities etc.

6.2 The Applicant started teaching in 2007 at the Technical High School Kimberly. He developed an interest in teaching while still in the air force. He was involved in the training of pilots and other technical staff on the electronic equipment installed in jet fighters and other technical issues. He occupied a temporary post until 2012, when he received a permanent appointment. During the same year, he was approached by the Principal of the Lichtenburg High School to teach electronics. The school is a comprehensive school, which also offers technical subjects. He was appointed on a temporary basis. At the end of 2016, he was appointed at Hoërskool Brits. The school started to introduce the subject, Electrical Technology in 2017. It was a school governing body post. In 2021 he became aware of the fact that there was a departmental post vacant at Hoërskool Wagpos. He applied for the position. The school is a comprehensive school, which also offers an agricultural and technical stream.

6.3 The Applicant stated that early in 2022 the school submitted an application to have his appointment converted to permanent. An application was made again in January 2023. On 30 October 2023, he received notification that he has been appointed on a permanent basis. He was later informed that the Respondent’s approval of the permanent appointment has been withdrawn as it was erroneously made. He pointed out that the temporary post places him in a position where he does not have access to benefits such as medical aid and a housing allowance.

6.4 Under cross-examination, the Applicant stated that he became involved in technical training in January 1985. He was also sent to Israel to familiarise himself with some technical equipment. He also received training in presentation skills. He, on four occasions received awards from the Respondent, being the Best Teacher Award. The last award was awarded for a 100% pass rate in the Grade 12 NSC examinations. It was put to the Applicant that he is not entitled to teach at a comprehensive school to which the Applicant responded that he is entitled to teach technical subjects at the school. It was further put to the Applicant that the SACE certificate only entitles the Applicant to teach in the TVET sector, which the Applicant denied.

Evidence by the Respondent

7. The representative of the Respondent, Mr B Seakosing testified on behalf of the Respondent. The following can be highlighted from his testimony:

7.1 The witness referred to the relevant Agreement (4/2018), which deals with the conversion of temporary educators to be appointed on the permanent educator’s establishment of a school. The relief sought by the Applicant is to be appointed in a permanent position. The Agreement prescribes the procedure to be followed for such conversion. In the first instance, the post must be a funded and a substantive post. If somebody needs to be appointed urgently, the Principal of the school needs to satisfy himself from the data base of the available teachers who will be able to fill the post. If there are no suitable qualified candidates on the data base, other candidates may be approached. The witness then dealt with the other requirements such as bursary holders and first-time applicants who need to receive preference when an appointment is being made. It was further stated that the Applicant, in such a situation, must have been in that position for at least three months and should be a qualified educator, properly registered with SACE.

7.2 Such a candidate must be professionally qualified. The Applicant is not professionally qualified. He can only teach in the TVET sector and his application is defective as he failed to prove, with regard to his trade qualification, any traceable trade experience for at least two years. He further stated that the Applicant is not in possession of a three-year qualification to be appointed as an educator. It is therefore believed that the Applicant does not have a level RQV13 qualification. Although the Applicant might have been entitled to train students in the defense force, he does not qualify to be translated to a permanent post at post level I in a comprehensive school. It is therefore submitted that the Respondent, in its decision not to convert the Applicant’s appointment to permanent, acted in terms of the provisions of the Agreement.

ANALYSIS OF EVIDENCE AND ARGUMENT

8. From the evidence and supporting documents the Applicant’s qualifications and service record can be summarized as follows:
1982 – Senior Certificate (Grade 12)
1985 – N2 (Bundle A, doc C)
1986 – N3 (Bundle A, doc D)
1987 – N4 (Bundle A, Doc E)
1988 – Trade Test
1988 – 1991 – Technikon / Instructor SAAF
1991 – 2007 – Various positions in electronics industry
2007 – 2013 – Kimberley Technical High School
2013 – 2016 – Lichtenburg High School – REQV 13
2017 – 2021 – Brits High School
October 2021 – Wagpos High School

2011 – DHET Evaluation REQV 13 (Bundle A, doc K)
2022 – SACE Registration (Bundle A, doc F)
2014 – Departmental Award – Best performing teacher Electrical Technology
(Bundle A, doc G)
2015 – Departmental Award – Best performing teacher Electrical Technology
(Bundle A, doc H)
2016 – Departmental Award – Best performing teacher Electrical Technology
(Bundle A, doc I)
2023 – Departmental Award – Top Performer Grade 12 Exams 2023 (National)
2024 – Appointed by Department as Chief Marker for Electronical Technology
for Grade 12 National Examinations in 2024

9. The Applicant, at the beginning of 2021 applied to have his appointment converted from temporary to permanent in terms of the Collective Agreement 4 of 2018, and more specifically Annexure A4 of that agreement. Annexure A4 inter alia provides for the following:
“4.1 Application
Annexure A 4 finds application in respect of temporary educators who are appointed on a fixed term contract to a funded, substantive and vacant level I post at a public school that is on the approved educator establishment. It does not apply to temporary educators who substitute permanent educators who are, for whatever reason, absent from the posts. The following relevant clauses can be highlighted:
4.2 Eligibility for the conversion
4.2.1 A temporary educator may only be eligible for a permanent appointment to a funded substantive and vacant level I 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 the conversion;
4.2.1.2 the temporary educator qualifies for the post in question;
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 terms of the Immigration Act 13 of 2002 and the Public Service Act, 1994.
4.3 Requirements
4.3.1 A temporary educator may only be appointed permanently to a funded, substantive and vacant level I post at a public school which is on the approved educator establishment.
4.3.2 a temporary educator may only be appointed permanently to such a post if the post cannot be filled by a:
4.3.2.1 permanent educator who qualifies for the post and who is in addition of the educator establishment;
4.3.2.2 first-time applicant to the employer as a contractual obligation to appoint in terms of the bursary awarded to the applicant; or
4.3.2.3 any other first-time applicant; and
4.3.2.4 the temporary educator is not excluded in terms of the provisions of paragraphs 4.3.3 to 4.3.5 of this Annexure.
4.3.3 The conversion of temporary educator to a permanent educator may be refused if:
4.3.3.1 the conversion would result in a contravention of the principles of equity, redress and representivity and the democratic values and principles referred to in section 7(1) of the Employment of Educators Act;
4.3.3.2 the Head of Department decides to follow the normal recruitment and selection processes;
4.3.3.3 the temporary educator’s appointment was because of a temporary increase in the volume of work which is not expected to endure beyond 12 months; and
4.3.3.4 the procedures specified below have not been complied with
4.3.4. …
4.3.5. …
4.4 Conversion Procedures
4.4.1 The following procedure must be followed with regard to the conversion of a temporary educator to a permanent educator.
4.4.2 The school principal must submit in writing to the department’s district office:
4.4.2.1 the profile of the funded, substantive and vacant level I post at the school which is occupied by a temporary educator who qualifies for conversion; and
4.4.2.2 all relevant information showing that the temporary educator qualifies for conversion.
4.4.3 The school principal and the governing body must submit a written confirmation to the department’s district office that there are no educators referred to in paragraph 4.3.2 of Annexure A who could be appointed to that post.
4.4.4 The Department must then consider the conversion.

10. The Respondent initially on 31 October 2023 concluded that the Applicant qualifies for his appointment to be converted from being a part-time educator in electronics, to a permanent educator with effect 01 July 2023. This decision was however almost immediately overturned, as it was apparently erroneously made. The Respondent concluded that the Applicant was not qualified to be appointed in that position. Officials of the Respondent informed the School in question that a mistake was made and that the application for conversion was unsuccessful.

11. The Applicant initially referred a dispute described as an “Interpretation and Application of Collective Agreement” in January 2024. After allowing the parties the opportunity to make submissions regarding the nature of the dispute, the Commissioner concluded that the dispute is not about the interpretation of the collective agreement, but the exercise of a discretion by the Respondent and therefore must be defined as an unfair labour practice dispute and in this particular instance, relating to benefits. A Directive was therefore issued in terms of Clause 17.1 of the Dispute Resolution Procedures (DRP), advising the parties of the conclusion and advising the parties to make submissions in that regard within a certain time period. It also advised the parties that should the conclusion be that the dispute relates to an unfair labour practice, then the Applicant referred the dispute outside the 90-day period as provided for in Section 191(1)(b)(ii) of the LRA.

12. The Applicant did not challenge the conclusions of the Commissioner and filed an application for condonation on 10 April 2024 for the late referral of the dispute. It is to be noted that the Respondent did not challenge the conclusion of the Commissioner nor did it challenge the application for condonation. After consideration of the Applicant’s submissions, condonation was granted and the matter was set down for arbitration on 12 June 2024, which process was concluded on 11 October 2024.

13. In his testimony, the Applicant testified that he obtained a National Senior Certificate at a technical school where after he joined the South African Air Force and was trained as an electrical technician. He was allowed to do his trade test. He was also involved in training fighter pilots in respect of the electronic equipment installed in fighter planes and other technicians involved with the particular equipment. He thereafter followed a career in the private sector in the electronic industry and at one stage was approached to become a teacher where after he was appointed at the Kimberly High School, teaching electronics. His qualifications and experience were submitted to the Department of Education for evaluation in 2011. That the Department issued a letter on 11 August 2011 reflecting the following:
“Senior Certificate (Technical) together with N2-N5 Certificate: Engineering Studies: Electronics, Department of Education, 1987 and a Certificate as Military Artisan: Avionic Fitter: Radio, South African Air Force, 1988: REQV 13 (s), professionally unqualified, and only for teaching/lecturing of Electrical Technology (Electronics)”.

14. The Respondent argued that the Applicant could not be appointed as he is not professionally qualified for the following reasons:
14.1 In terms of SACE registration, he is only qualified to teach in the TVET sector. Wagpos High School is a comprehensive school;
14.2 The Applicant is not in possession of a three-year qualification to be appointed an educator;
14.3 The Applicant does not have a RQV 13 qualification.

15. It is evident on proper reading of the evaluation that the Applicant, given his qualifications, Is classified and accorded REQV 13 status (Bundle A, doc K). It is also to be noted that in respect of previous appointments of the Applicant by the Respondent, the Applicant’s REQV status was recognized (Bundle A, doc X).

16. With regard to the argument that the SACE registration only allows the Applicant to teach at TVET colleges, the Respondent did not rely on any supporting policy or other evidence substantiating this interpretation. According to the definition by UNESCO and the International Labour Organisation (ILO), TVET refers to “aspects of the educational process, in addition to general education, the study of technologies and related sciences, and the acquisition of practical skills, attitudes, understanding and knowledge relating to occupants in various sectors of economic and social life” (UNESCO and ILO, 2001). The focus is on what is being taught and not the institution.

17. The Wagpos High School offers three streams of study being general, agricultural and technical. The technical stream offers three technical subjects, i.e., electrical, mechanical and civil technologies. Electrical technologies offers three areas of specialization being electrical, electronics and digital. It is therefore evident that the technical stream of study falls within the definition of what is meant by TVET sector. I must therefore conclude that in terms of his SACE registration, the Applicant is entitled to be appointed as a teacher at that particular school teaching electronics.

18. It is further argued that in terms of the Minimum Requirements for Teacher Education Qualifications (MRTEQ) 2015, teachers teaching electronics must have a “three subject National Technical Certificate iii (N3)”, which must include Electronics as a subject plus two years appropriate trade experience”. The fact of the matter is that the Applicant has an N4 qualification with electronics and communication electronics as subjects. He has been working in the air force as a technician and instructor in electronics until 1991 when he joined the private sector. It must further be noted that he did his trade test in 1988. It is further to be noted that the Respondent never raised or sought clarification from the Applicant to provide evidence of the “trade experience” required. It is evident that this argument came as an afterthought when all the evidence was already presented.

19. The Respondent also argued that the evidence presented by the Applicant of instances where teachers positions’ at special schools with REQV 13 qualifications were converted to permanent appointments in terms of the Agreement, that those approvals only applied to special schools. It is however to be noted that the Agreement regulating the conversion process applies to all educators, irrespective of the school to which they are appointed. It would create a clear inconsistency to argue that educators with a REQV 13 status can be permanent at the one type of school but not at a different type of school while teaching identical technical subjects.

20. The Applicant argued that the Personnel Administrative Measures (PAM) provides for instances where unqualified educators are allowed to teach without being formally qualified as educators. The Applicant specifically referred to Section B.3.2.1.3 of the PAM, which lists a number of specialised subjects, which allows for unqualified educators. One of the subjects listed is electrical technology. He further argues that in terms of the Minimum Requirements for Teacher Qualifications (MRTEQ), it also provides that certain non-professional qualifications are allowed for the purpose of teaching. The Applicant has obtained an N4 qualification in radio theory/mathematics/electronics/logic systems (Bundle A, doc C to E). The Applicant is registered at SACE and has received numerous awards for the best educator in electronics (Bundle A, doc G to J). It is further submitted that the Applicant’s qualifications were rated at level REQV 13, which immediately entails that in terms of the Department of Higher Education, the Applicant must have a Grade 12, plus at least three years relevant training. It is further pointed out that the Applicant has taught the subject of electronics at a number of schools since 2013 and has been a staff member of his current school since 2021. The Applicant therefore qualifies to be permanently appointed in terms of the Annexure A, Clause 4 of the Agreement.

21. It is also appropriate that I, at this point in time, point out that the Applicant was employed by the Respondent in 2013. His REQV 13 status was recognized from the start. He also received a number of awards from the Respondent for his achievement in respect of the national results in Grade 12, teaching electronics. He has been appointed by the Respondent as Chief Marker for the 2024 National Grade 12 Examinations.

22. This dispute was referred as an unfair labour practice as defined in terms of Section 186(2)(a), being unfair conduct by the employer relating to the promotion, demotion, probation … or training of an employee or relating to the provision of benefits to an employee. In Apollo Tyres South Africa (Pty) Ltd v CCMA and others [2013] 5 BLLR 434 (LAC), the court held that the definition of benefit, as contemplated in Section 186(2)(a) of the LRA, is not confined to rights arising ex contractu or ex lege, but included rights judicially created as well as an advantage or privilege employees have been offered or granted in terms of a policy or practice subject to the employer’s discretion. In this particular instance, Collective Agreement 4 of 2018 created the advantage for temporary employees to be appointed as permanent educators subject to the adherence to certain requirements. This process involves the exercise of discretion by the Respondent. In Thiso and others v Moodly NO and others [2015] 5 BLLR 543 (LC), the court held that the CCMA has jurisdiction to arbitrate a dispute in situations where employees do not have a legally enforceable right to the benefit claimed, but where the employer has a discretion to grant it in terms of a policy or agreement.

23. In this particular instance, the Respondent argued that the Applicant could not be appointed permanently because he did not have the qualifications to be appointed in such a position and that he did not have the appropriate SACE registration to teach at a comprehensive school such as Wagpos High School. The School and the Applicant adhere to all the other requirements as set out in Clause 4 of Annexure A. As considered above, it is apparent that the Applicant, as far as qualifications are concerned has REQV 13 status, which in terms of the PAM allows him to teach the subject of electronics. It is further to be noted that the phrase TVET sector, refers to aspects of the educational process involving, in addition to general education, the study of technologies and related sciences. It has further been established that the School at which the Applicant is employed, also provides technical education and that subjects such as electronics are being taught at this particular school.

24. In view of the above, I must therefore conclude that the decision of the Respondent on 31 October 2023 not to appoint the Applicant as a permanent educator with effect 01 July 2023, constitutes an unfair labour practice as envisaged in terms of Section 186(2)(a) of the LRA.

25. In terms of Section 193(4) of the LRA, an arbitrator appointed in terms of the mentioned Act may determine any unfair labour practice dispute on terms that the arbitrator deems reasonable, which may include reinstatement, re-employment or compensation.

AWARD

26. The Applicant wants to be appointed on a permanent basis. The Applicant also submitted calculations which show that the Applicant was financially prejudiced by the failure/refusal of the Respondent to convert the appointment to permanent. Section 193 does not allow for the payment of damages. It is however evident that the refusal to translate the appointment to permanent was without any justification and clearly amounted to the infringement of the Applicant’s rights.

27. In view of the above, it is the ordered:

27.1 That the Applicant’s employment status be translated to that of a permanent employee with retrospective effect, being 01 July 2023;

27.2 The Respondent is to pay the Applicant R24,373.00 (TWENTY-FOUR THOUSAND, THREE HUNDRED AND SEVENTY-THREE RAND) being the equivalent of one month’s salary as compensation by the 31 November 2024.

Signature:

Panelist: PIETER GREYLING
Sector: Education Department of North West