Award  Date:
7 May 2017
Case Number: PSES193-16/17EC
Province: Eastern Cape
Applicant: NAPTOSA obo N TYULU
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: district offices at Lady Frere
Award Date: 7 May 2017
Arbitrator: Monde Boyce
Case No ELRC PSES193-16/17EC

In the matter between

NAPTOSA obo N TYULU Applicant



HEARD: 03 & 04 May 2017


DATE OF AWARD: 07 May 2017

SUMMARY: Labour Relations Act 66 of 1995 as amended (“LRA”)– Alleged unfair labour practice – promotion – Whether the employer’s non-appointment of the applicant to the position of Head of Department (HOD): Maths and Physics and appointing a different candidate, constituted unfair conduct in terms of Section 186 (2) (a) of the “LRA”



[1] This matter was held at the respondent’s district offices at Lady Frere and was heard on 10 November 2016 and on 02 to 03 May 2017. Mr KS Dalasile, a trade union official, appeared for the applicant while Mr BMG Kwepile appeared for the employer.

[2] I must mention that the matter was initially postponed because there were documents that the applicant and her representative had requested from the respondent but which documents could not made available then for reasons the respondent advanced. The applicant has since received the documents and having received the document and with the parties having engaged in a pre-arbitration meeting, parties identified most issues as common cause with the only issues in dispute being:

[2.1] Whether the respondent should have appointed the applicant after the initial interview process was declared null and void instead of starting the process afresh.

[2.2] Whether the applicant should have been appointed to the position despite her having Maths and General Science as opposed to the Maths and Physics that was a requirement for the position.


[3] I am required to decide whether the respondent’s non-appointment of the applicant for a position of HOD constituted unfair labour practice in terms of Section 186 (2) (a) of the LRA..

[4] The applicant is currently employed as an educator at Ntsongotha Senior Secondary School. A position of HOD at the school was advertised and the applicant applied for the position. One of the primary requirements was that candidates applying for the position needed to have Maths and Physics. The applicant applied for the position and was shortlisted and interviewed despite possessing Maths and General Science. The applicant achieved the highest score during that interview process, but another candidate, Mrs Ginyigazi, was appointed to the position. She lodged a grievance and subsequent to the grievance she lodged an investigation was conducted where the initial interview process was declared unfair and nullified. A fresh interview process was conducted where the 2nd respondent, Mrs Ginyigazi, was appointed. Unhappy with that decision, the applicant decided to challenge her non-appointment by way of referring an unfair labour practice dispute to the ELRC. The dispute could not be resolved at conciliation and the applicant referred the dispute for arbitration. She seeks appointment to the position of HOD as relief.


The Applicant’s Evidence
The applicant testified as follows:
[5] She works as an Educator at Ntsongotha Senior Secondary School in Ntsongotha and started working in 1994.. A post of Head of Division (HOD): Maths and Physics was advertised in June 2015. She currently teaches maths literacy and life orientation. She applied for the position despite not possessing Maths and Physics, and that she did after having been advised by a Mrs Bhula from the district office that she could apply despite not having Physics. The 2nd respondent currently supervises maths literacy, agricultural science and life science as well as maths as the HOD at the school. She had obtained the highest scores according to the final outcome of the interview process, but these scores were later changed to favour the candidate preferred by the principal of the school.

[6] She was later informed by the principal, after having gone through the interview process, that the 2nd respondent had been appointed to the position. She had gone to NAPTOSA offices to inform the union that the 2nd respondent had been appointed. She was advised to lodge a grievance. A meeting was held where the employer explained what had transpired and informed her that it appeared that there were anomalies in the process leading up to the appointment of the 2nd respondent and that they were going to start the process afresh. She had written to the district offices stating that she did not agree with the interview process being started afresh because she knew that she was the candidate who scored higher and had expected the department to appoint her. The department was not supposed to have changed the scores.

The Respondent’s Evidence

The respondent’s first witness, Mr Mpumelelo Mfaku, testified as follows:

[7] He is currently employed as the principal at Ntsokotha Senior Secondary School. One of his responsibilities is to ensure that he allocates work to educators in line with the requirements of the school, and such allocation is usually in line with the qualifications of the educators. A meeting is usually called with the teachers in the allocation of work and if an educator is not comfortable with a particular subject he seeks to accommodate them accordingly.

[8] The applicant is not qualified in physics. He had identified physical science; maths and accounting as subjects the school had challenges with. He advertised the post of HOD because he wanted a physics and maths teacher but his priority was physics. During the interview process he was the resource person who had to inform the SGB of any challenges at the school.


[9] The issue before me was that of an alleged unfair conduct on the part of the respondent. I have taken into account all the evidence and the closing arguments and having heard evidence, I am not persuaded that the applicant has discharged the onus to prove unfair conduct on the part of the respondent. The position advertised was that of an HOD: Maths and Physics and the respondent’s only witness, Mr Faku, detailed why it was important for an appointee to the position to possess Maths and Physics. He referred, during cross questioning, an instant where he rejected another educator seconded to the school who possessed Maths and Natural Sciences. Having heard evidence it became clear that the reasons for the applicant being rejected for the position, despite having achieved the highest score in the initial interview process, was because of her not meeting was very crucial requirement and which requirement was that she had to be qualified in not only Maths but Physics as well. There was therefore no basis for her to expect to be appointed to the position. Even if I were to accept that an official from the district office in the person of Mrs bhula indicated that she could apply, I would still find nothing wrong with her non-appointment because she lacked the one crucial qualification that was a pre-requisite for appointment to the position, Physics.

[10] Again, even if I were to accept that she achieved a higher score during the interview process I would still reject that her achieving a higher score would automatically have rendered her suitably for appointment to the position. Employers have a right to determine, in deciding who to appoint, as such factors that would meet the desired result for a person to be appointed to an advertised position. Appointment of employees to advertised positions is the prerogative of an employer, and it is a prerogative that ought not to be easily interfered with. The only instances that would call for interference with employers’ decision to appoint would only be when such decisions are so grossly unfair and unreasonably. In Goliath v Medscheme (Pty) Ltd 1996 (17) ILJ 760 at 768: the court held that:

“Inevitably, in evaluating various potential candidates for a certain position, the management of an organisation must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”.

[11] It is therefore my finding that the claim lacks merit and falls to be dismissed on this ground and I, in the premises, make the following award.


[12] The respondent’s overlooking the applicant for appointment to the position of HOD and its (respondent) appointment of the 2nd respondent did not constitute unfair conduct.

[13] This matter is accordingly dismissed.

Monde Boyce
Panelist: ELRCc
261 West Avenue
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