01 July 2025 – ELRC1185-24/25GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

CASE NO.: ELRC 1185-24/25 GP
In the matter between:-

THEMBA RAYMOND NKOSI APPLICANT
and

DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 02 May and 02 June 2025
CLOSING ARGUMENTS: 09 June 2025
DATE OF AWARD: 01 July 2025

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to benefits.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

A virtual arbitration was held on 02 May and 02 June 2025, respectively. The applicant was represented by Mr P. Molefe. Mr Peter Nkosi, its Head of Labour, represented the respondent.
I recorded the proceedings digitally. The parties were granted indulgence to submit their closing arguments by 09 June 2025.

ISSUE TO BE DECIDED

I am required to decide whether the respondent’s failure to award the applicant a bursary for LLM degree studies constitutes unfair labour practice. I must determine if he applied for the bursary. The respondent denies receiving the applicant’s application. Should I find that he had applied, I will determine if he was unfairly excluded from the successful candidates.
Should I find in favour of the applicant, I will further determine the appropriate relief. The applicant seeks to be awarded the bursary.

BACKGROUND TO THE ISSUE

The applicant referred the dispute of unfair labour practice relating to the provision of benefits to the Council for conciliation. The dispute could not be resolved, and a certificate of the outcome of conciliation to that effect was issued. The applicant requested that the dispute be arbitrated.
SURVEY OF EVIDENCE AND ARGUMENTS
AGREED FACTORS
The parties agreed to the following factors as being the common course:-
6.1 The applicant is a School Principal.
6.2 The bursary applications for 2025 intake closed on 31 August 2024.

THE APPLICANT’S SUBMISSIONS

Themba Raymond Nkosi testified that he submitted his bursary application in August 2024 in the box that the security directed him to. The closing date for applications was 30 August 2024. He did not receive feedback regarding his application. This prompted him to enquire about the outcome.
On 13 January 2025, he sent a grievance to the respondent with no response. He followed up on 20 January 2025. Mankoe Mashile’s response on 28 January 2025 was “ I am surprised that you did not attach the proof of registration”.
During cross-examination, the respondent’s 2024 register could have been tampered with to exclude him. A version was put to him that even if he applied he could not have been granted the bursary because LLM does not fall within the scope of the learning discipline of the bursary. He responded that he was entitled to the bursary because, as a principal he is exposed to legal matters involving educators and learners and their discipline to be granted one.
He said the bursary MEMO on A14 makes provision for deviation to study outside the education discipline. The evidence that he applied for the bursary is the head Office email response by Mashile in January 2025. He believes she checked the system and saw his application before responding.
He conceded that adjudication of applications is done at the District Office with all units and unions. However, he was evasive when a version was put to him as to why he contacted Head Office, not the District office, despite the applications being submitted and adjudicated by the District.

THE RESPONDENT’S SUBMISSIONS

Maphayeng Monica Maredi testified for the respondent that she is the Coordinator of Bursaries for educators. The Applicant attempted to submit his bursary application to her on 24 October 2024. It was way beyond the closing date. She was monitoring grade 12 final year examinations. The reason he went to her office was that they had removed the submission box, which was placed outside her door on the closing date.
She refused to take the application and informed him that he was late; the closing date was 30 August 2024. He informed her that he was studying pure law. She explained to the Applicant that the bursary does not fund courses that are not related to education. It funds education studies that benefit the learners. She informed him that law is outside the scope of education.
She inducted him on the bursary application process for future purposes, as it was her responsibility by virtue of the office she held. She established from him that he had not attached proof of registration. She explained to him the documents that he must submit the following year. He understood and left the office with the application.
During cross-examination, she confirmed that they removed the submission box from outside on the closing date in August 2024. If the applicant had submitted the application form in the box, they could have found it with the others. The register recorded only 72 applications, and only 50 candidates were awarded the bursary. The applicant’s name does not appear on the applications received register and minutes of the adjudication. They did not receive his application.
She said the memo provides that deviation must be in line with education. They inducted educators for 3 months on the bursary policy. By the time the bursary applications closed, they knew the requirements. She conducts road shows on the bursaries, and any aspects not mentioned in the memo are clarified and discussed at the shows.
The respondent’s bursary is for career pathing in the education sector. It does not cover any other sector. She denied that the encounter she had with the applicant and the explanation she offered the applicant, occurred in 2024 for the 2025 academic year, as a version was put to her. She said she was not involved with the bursary application at the time.
Mankoe Sarona Mashile testified for the respondent that she is a Deputy Chief Education and a Bursary Manager. The bursary is for the development of educators. The provincial office drafts the memo and sends it to the District Office for customization.
The District will indicate where to submit the applications. The candidates do not submit the applications to the Head Office. The District office screens and adjudicates the applications. It sends the successful candidates to the Head Office for approval. She would not know the candidates who submitted the applications because the Head office receives only the list of successful candidates and the minutes.
When the applicant called her about the bursary, she asked him if he had submitted all the required documents. He responded positively. Her response to his email that he did not submit the proof of registration does not mean that she received his application. She neither received nor saw his application.
She checked with Monica Maredi if the applicant had applied. Maredi informed her that the applicant attempted to submit his application after the closing date in October 2024. Maredi refused to accept the application. He had informed her (Maredi) that he did not attach his proof of registration. Hence her response to the said communique/email.
During cross–examination, she said that the applications are submitted to the District office for adjudication. The District submits the list of the successful candidates and the minutes to the Head Office. The applicant was not on the list. Maredi informed her that she did not take the applicant’s application because it was late. She merely offered clarity and information to the applicant in her communication. The bursary grievances are submitted and handled by Labour Relations at the District level. The applicant’s email was not a grievance. CLOSING ARGUMENTS
The applicant argued that he had proved that the Respondent committed an act of
unfair labour practice. The respondent’s versions were contradictory. They did not do
their due diligence in handling his application. He was never informed that his
application was late, and the reason his application was not considered was that he
did not submit his application.
In the case of Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & others (2013) 34 ILJ 1120 (LAC), it was amongst other, held that “it has been said that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
He pleads that the outcome be in his favour and that the respondent be ordered to
grant him the bursary.
The respondent argued that it has been proved that Maredi refused to accept his application as it was late and did not conform to the criteria set for recipients of bursaries, as it was not education-related.
The second witness indicated that she does not deal with district-based bursaries. She merely offered clarity and information to the applicant, as she did not get the bursary application from the applicant or from the District Office.
The applicant was merely shooting in the dark with the hope that his application would succeed, as he could not even produce a shred of evidence that he submitted his bursary in 2024 to the District Office.
The applicant elaborated on the deviation policy of which one can only argue that after having proven that he had handed in his application on time. As he had failed to prove the above, the argument about the deviation policy is of no consequence, he was merely flogging a dead horse.
The LC in Kabe v Nedbank Ltd (2018) 39 ILJ 1760 (LC) (handed down on 8
May 2018) reiterated the importance of costs orders as a tool to deter frivolous
and vexatious disputes. In deciding to award costs, the LC indicated that the pursuance of frivolous disputes negatively affect the administration of justice and the business of the Court and its judges.
Whilst employees have a right to the refer matters to the Council as disputes, where there is an element of vexatious and frivolous intent like in this case where the applicant knew that he did not submit his application yet referred the matter to the Council, the Council should consider costs against the applicant as the Department has had more than five (5) referrals to the Council by this particular applicant/ employee and all of them were unsuccessful. ANALYSIS OF EVIDENCE AND ARGUMENT
The applicant bears the onus to first prove on a balance of probabilities that he had applied for the bursary. If he discharges this onus, he must prove that he meets the requirements and that he was unfairly excluded, bearing in mind that not all candidates meeting the requirements are automatically successful.
The applicant alleges without evidence that he submitted his application in August 2024. He only relies on the email from the respondent’s Deputy Chief Specialist -Bursary Manager, Mashile, who is based at the Head office.
Mashile’s email was responding to the applicant’s email and telephone, wherein he was following up on the alleged application status. Mashile explained that her response was prompted by the applicant’s telephonic assertion that he had attached the proof of registration to the application. Her response to his email that he did not submit the proof of registration does not mean that she received his application. She neither received nor saw his application.
She checked with Monica Maredi if the applicant had submitted his application. Maredi informed her that the applicant attempted to submit his application after the closing date in October 2024. She had informed her that Maredi, on the day that he did not attach his proof of registration. Mashile’s response to the applicant was based on the information she gathered from Maredi. She denied ever seeing the applicant’s application.
I find Mashile’s version that she did not see the applicant’s application to be probable for the reasons that follow. It is not in dispute that the applications are submitted at and the adjudications are conducted by the District Office. Furthermore, the District office only submits the list of successful candidates for approval and the minutes to the Head Office.
In addition, his name was not on the list of the 72 successful candidates who were sent to the Head Office for approval. It is only the list that is sent to the Head Office for approval. Therefore, she could not have seen the application except by relying on the information from the District. There is nowhere on Mashile stating that she had received or seen the application. The applicant is opportunistic in relying on Mashile’s email as evidence for submission.
The applicant did not challenge the respondent’s version, the District handles bursary grievances. It is an additional reason supporting the respondent’s contention that Mashile had not seen the application. It also proves that the applicant is disingenuous in his contention that he lodged the grievance at the Head Office.
Maredi testified that the applicant attempted to submit his application to her office in October 2024. The reason he went to her office was that they had removed the submission box on 31 August 2024 when the applications closed. The box had been placed outside her door for the candidates to submit. This proves on the balance of probability that the applicant did not submit his application. If he had submitted the application, he could have put it in the box, not inside Maredi`s office.
He did not deny that he went to Maredis office; his version was that it was in 2023. He failed to challenge Maredis version that she was not involved in 2023. Both the respondents witnesses testified that the applicants name does not appear on the register of received applications and the minutes. He failed to explain why the respondent had excluded only him from the register and minutes of the adjudication if he had applied.
Maredi’s reason for inducting the applicant about the bursary in her office is plausible. She is the custodian of the bursary policy. She was responsible for ensuring that the candidates were aware of the bursary and requirements. She conducted bursary road shows. Hence, she intended to ensure that the applicant submits a proper application the following year when the applications open. I am not persuaded that the discussion proves that he applied. In contrast, it supports the respondent’s rebuttal.
The applicant failed to prove on the balance of probabilities that he applied for the bursary. In the absence of the application presented to the respondent`s District Office for adjudication with the other candidates, it is improbable to expect any results. My determination ends. It becomes moot to determine that LLM falls within the scope of the respondent’s education sector bursary, qualifying him for the award. Therefore, he had failed to discharge the onus that the respondent committed an act of unfair labour Practice.
The respondent raised an issue of costs in their argument. However, this aspect was not raised during the proceedings for the applicant to respond. I am inclined to reject the cost order application.
AWARD
I order that:
1. The respondent, the Department of Education, Gauteng, did not commit an act of unfair labour practice against the applicant Themba Raymond Nkosi.
The applicant’s dispute is dismissed with a no-cost order.