Case Number: PSES 821-17/18LP
Applicant: M.M Mathunyane
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 June 2018
Arbitrator: Diale Ntsoane
Commissioner: Diale Ntsoane
Case No.: PSES 821-17/18LP
Date of Award: 12 June 2018
In the ARBITRATION between:
(Union / Applicant)
Limpopo Department of Education
Union/Applicant’s representative: Makhafola M.H
Telephone: 082 809 3873
Respondent’s representative: Masindi M.K
Respondent’s address: Cnr Hospital & Hans van Rensburg Street
Telephone: 015 290 9314
DETAILS OF HEARING AND REPRESENTATION.
 The arbitration hearing was held under the auspices of Education Labour Relations Council (ELRC) on 14 May 2018 at the Department Education offices in Polokwane. Mr. H Makhafola, SADTU’s provincial organizer, represented the applicant whilst Mr. M. K Masindi, a labour relations officer, represented the respondent. The proceedings were recorded manually and electronically. Only one bundle of documents was submitted as documentary evidence and it was marked bundle A.
 It was agreed between the parties that closing arguments would be submitted on or before 21 May 2018. However, only the respondent’s submissions were received.
 No preliminary points were raised.
 The applicant is employed by the Department of Education as a head of department. She applied for a position of deputy principal at Rite Primary School in Motetema Circuit. She was shortlisted for the position in 2017 and was later invited to the interviews. She was not appointed and is now challenging the appointment of the incumbent.
ISSUE TO BE DECIDED.
 Whether or not the non-appointment of the applicant to the position of deputy principal constituted an unfair labour practice. If it is found to have been unfair, I am required to determine appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT.
Masibule Mamikie Mathunyane’s testimony was that:
 She worked at Morope Matlala Primary School in Rakgadi District since January 1995. She has been a head of department since November 2016. On 01 November 2017 she applied for the position of deputy principal at Rite Primary School. She was short-listed and attended the interviews. It was explained at the interview that if she did not receive any communication from the department, she should assume that she was not appointed.
 She later learned that Ms. Rachidi was appointed into the position. She knew that Ms. Rachidi had previously resigned; and she made a follow-up with the department regarding Ms. Rachidi’s appointment because circular number 121 of 2014 stated that people who had resigned will be re-appointed last – page 1 of bundle A. The response she got from the department was that Ms. Rachidi was appointed on merit.
Precious Madzeza’s testimony was that:
 She had been a Deputy Director: Corporate Services since 01 February 2008. She dealt with human resources matters, telecommunication and auxiliary services. They appointed Ms. Rachidi at Rite Primary School. Ms. Rachidi scored number 1 in the interview – page 2 of bundle A. Ms. Mathunyane got position 2 and the panel and school governing body recommended Ms. Rachidi.
 Page 1 of bundle A was circular number 121 of 2014 which restricted the department from appointing persons who had a break in service. Ms. Rachidi resigned in February 2013 and when the circular was issued she was already back into the system. Ms. Rachidi resigned as a deputy principal on 28 February 2013 and was re-appointed as a teacher in June 2014 on permanent basis as CS1 teacher.
 The appointment as a deputy principal was a promotion. Ms Mathunyane was appointed and not re-appointed as a deputy principal. The re-appointment to the CS1 teacher happened before the circular was issued.
ANALYSIS OF EVIDENCE AND ARGUMENT.
 It is common cause that the applicant was working as a head of department at Moripe Matlala Primary School. It is further common cause that she applied, was short-listed and interviewed for the position of deputy principal of Rite Primary School. It is further common cause that that the applicant was not appointed into the position and Ms. Rachidi is the incumbent. It is further common cause that a circular setting out certain conditions for persons who previously resigned from the department and were seeking re-appointment. It is further common cause that the applicant is challenging her non-appointment.
 The applicant contended that the department should not have appointed Ms. Rachidi because she was re-entering the system and was thus barred by circular 121 of 2014 from being appointed as a deputy principal. She argued that the appointment of Ms. Rachidi constituted an unfair labour practice as she was eligible for appointment into the position of deputy principal.
 The respondent, on the other hand, contented that the circular the applicant was relying on was issued after Ms. Rachidi had re-joined the department. The respondent argued that Ms Rachidi’s appointment was not unfair.
 Point number seven of the said circular stated as follows:
“This circular comes into effect from the date of signing”
 It was signed on the 14th of November 2014. The respondent’s undisputed evidence was that Ms. Rachidi resigned on 28 February 2013 and was re-appointed in June 2014. The circular that could have barred her from being appointed as a deputy principal was issued on 14 November 2014 – five months after she re-joined the department. Ms. Rachidi was already in the system when the circular was issued. The circular does not have retrospective effect, and therefore it does not affect Ms. Rachidi.
It follows that the applicant has failed to prove that the failure by the respondent to appoint her to the position of deputy principal of Rite Primary School constituted unfair labour labour relating to promotion.
 The application is dismissed.
 No order is made as to costs.