Case Number: ELRC1128-25/26EC
Arbitrator: Clint Enslin
Date of Award: 30 September 2026

In the matter between

NAPTOSA obo Nonelela Pako
(Applicant)

And

Department of Education – Eastern Cape First Respondent

Nomonde Ntame Second Respondent
(Respondents)

Union/Applicant’s representative:

Mr Anton Adams (NAPTOSA)




Telephone:
Telefax:
E-mail: antona@naptosa.org.za

Respondent’s representative: First Respondent – Mr Lwando Jevu / Second Respondent – Ms Zizipho Malima (SADTU)
Respondent’s address:



Telephone:
Telefax:
E-mail: Lwando.Jevu@ecdoe.gov.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute (promotion), referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), read with clause 17 of part C of the ELRC Constitution, was held at the First Respondent’s offices in Mdantsane, on 7 and 8 September 2026.
2. The Applicant, Ms Nonelela Pako, was present and represented by Mr Anton Adams, a Senior Executive Officer of NAPTOSA. The First Respondent, Department of Education – Eastern Cape, was represented by Mr Lwando Jevu, an Assistant Director: Labour Relations of the First Respondent. The Second Respondent, Ms Nomonde Ntame, was present and represented by Ms Zizipho Malima, an official of SADTU.

Issue to be decided

3. The issue to be decided is whether or not the failure to shortlist the Applicant, for the position in question, amounted to an unfair labour practice against the Applicant; and
4. If so, to determine the appropriate relief.

Background to the matter

5. The Applicant, through her union (NAPTOSA), referred an alleged unfair labour practice dispute relating to promotion.
6. The following facts were common cause:

6.1 The Applicant applied for the position advertised as “Departmental Head at Chumani Primary School.

6.2 The post was advertised in Bulletin Volume 2 of 2025, with post number 306 and dated 16 May 2025.

6.3 The Applicant is currently and was at the time of her application a PL1 educator employed by the First Respondent.

6.4 At the time of her application, she was an educator at Chumani Primary School and she is currently an educator at Overton Primary School.

6.5 The Applicant’s current notch is R400 488 per annum.

6.6 The notch of the post in question is R 435, 240 per annum.

6.7 The post applied for would have been a promotion for the Applicant.

6.8 The Applicant was not shortlisted.

6.9 The post in question was a vacant and substantive post.

6.10 The Second Respondent was appointed into the position as of 30 October 2025.

7. The Applicant handed in two bundles of documents, which I marked as “A1” and “A2”. The First Respondent handed in one bundle of documents which I marked as “R”. Parties agreed the documents therein were what they purported to be.
8. The arbitration was digitally recorded.
9. Written heads of argument were received on 16 September 2026. Survey of evidence
10. This award constitutes a brief summary of evidence, arguments and my reasons for the award issued in terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
    evidence and arguments heard and considered in deciding this matter.

Applicant’s evidence
Ms Nonelela Pako

11. The Applicant, Ms Nonelela Pako, testified that she had been employed by the First Respondent since 2008. She possessed a National Diploma in Tourism Management, a Post Graduate Diploma in Education (intermediate and senior phase) and BED Honours in inclusive education. She had applied for the post in question. The application was submitted on time, she had completed the prescribed form and she had attached the required documents. The First Respondent never informed her that her application was incomplete. She was aware that applications were first sifted by the First Respondent.
12. Page 28 of A was the Master List for the position in question. Her name was the first one on the list and at the last column headed “Comments” it stated “Complete”. This meant that according to the First Respondent her application was complete. She had become aware that she had not been shortlisted when her colleague, Mr Kwetana, who had also applied for the position got a call for the interview. The shortlisting criteria used in round 1, which the First Respondent had confirmed per the Master List that she met, were contained on page 34 of A and included the following:

12.1 Forms must be completely filled in with no empty spaces

12.2 3 Years’ experience

12.3 Tipexed forms

12.4 Diploma/Degree

12.5 SPTD

12.6 SACE Certificate

12.7 Certified copies of qualifications

13. Pages 11, 12 and 13 of A was her application. The form was completed correctly and signed by her. She was not given any reason for her elimination as confirmed on page 34 of A. A1 is the Provincial Collective Agreement 1 of 2024, headed: “Guidelines for advertising and filling of educator posts at institutions”. Point 3.4 thereof, under the heading “Sifting” reads as follows: “Incomplete applications will not be considered after the sifting process has been complete.” Sifting had been completed in her case and the First Respondent had sent her application to the school. She was very disappointed not to be shortlisted as she was sure that she met the requirements.
14. She conceded that she had not been present during the shortlisting meeting nor had she attended any part of the shortlisting process. She had not heard the resource person instruct anyone to be eliminated and not shortlisted. As per page 36 of R, the Principal (Ms Nozuko Nondlwana) was the resource person. There was nothing in the said minutes that indicated that the resources person had interfered, however, it was not these shortlisting minutes of 25 September 2025 that she was disputing, but rather the shortlisting that was done on 9 September 2025. There were two shortlisting meetings held and she was referring to the first one. Page 12 of R was her application form. She had not been informed that she had not been shortlisted due to her form being incomplete.
15. She conceded that she had not marked “gender” at section B at point 11 on the form. She had also not marked “disability” next to “gender”. Point 17.4, headed “Senior Research Degree, eg. Med M Phil, D Ed” was also not filled in. Point 28 on page 13 which referred to “other relevant information” was also not filled in. Point 29, under “explanation”, on page 13, was also not filled in. She agreed that the “F” (for female) on the Master List did not come from her application form as same was not filled in on her form. She, however, disputed that the SGB had acted correctly by excluding her due to her form being incomplete. She agreed that as per page 34 of A, the criteria of the form needing to be complete was not only applied to her. She agreed that from what she could see, there was no malice from the First Respondent and there was no evidence of inconsistent behaviour or that the panel had targeted her.
16. She met the requirements for a Departmental Head position, being a REQV 13 and 3 year’s teaching experience. She did not have a Master’s Degree and as per her CV, her highest qualification was an Honours Degree. Her supporting documents also confirmed same. The bulletin had asked for proof of qualifications to be attached. Pages 58 to 60 of R was the application form of the Second Respondent, Ms Ntame. She had not filled in a house telephone number of fax number on the application, at point 14. She had indicated that her qualification was a Senior Primary Teacher’s Diploma (3-year Diploma). Despite this, she stated on her form that she had a REQV 14 when in fact it was a REQV 13. As such, her form was incorrectly filled in.

Mr Zwelandile Kwetana

17. Mr Zwelandile Kwetana testified that he held a 3 year Teacher’s Diploma, an Advanced Certificate in Education and an Honours Degree in education law, education management and education systems. He was currently a PL3 deputy principal at RH Godlo Primary School. At the time the post in question was advertised, he was a PL 1 educator. He had applied for the post and his details were contained on point 26 of the Master List on page 28 of A. The last column stated that his application was complete. He received a call and a sms, on 9 September 2025, inviting him to an interview on 16 September 2025. He had, however, not gone as he had received another sms stating that it was postponed until further notice. He was never informed of a new date. He was also not informed that the initial shortlisting had been cancelled and he was shocked to hear that an appointment had been made to the post.
18. Page 34 of A (shortlisting minute of 25 September 2025) confirmed that he had been eliminated due to an incomplete form, however, the Master List on page 28 of A confirmed that his application was complete. Page 30 of A confirmed that a SGB special meeting was held on 23 September 2025 to select the shortlisting and interview panel. This meeting was therefore held after 9 September 2025, the date he was invited for an interview. He had been called by Ms Abongile Mnkani, on 9 September 2025, who stated that she was the secretary of the panel. Per page 32 of A, she was also present in the meeting on 23 September 2025. There had been a shortlisting meeting before the one on 25 September 2025, which had led to him being invited to an interview on 16 September 2026, which interview he was told had been postponed. He had not been informed after the second shortlisting, on 25 September 2025 that he no longer needed to come for an interview.
19. Ms Abongile Mnkani (panel secretary) had sent him a sms to inform him that interview was postponed. He confirmed that as per the shortlisting minutes, of 25 September 2025, he had been eliminated due to incomplete form. He, however, disagreed that his form was incomplete. A1 at points 10.3.and 10.4, under the heading “The role of Observers and Resource Persons” confirmed that the resources person shall advise the panel pertaining to relevant departmental policies, rules and regulations as well as appropriate legislation. Union observers will observe all the proceedings and shall not be actively involved in the process. At page 38 of R (Minutes of shortlisting meeting of 25 September 2025) the following was captured: “The panel discussed and agreed that they should take the 6 applications to interviews. Upon verification by the union and resources person 3 applications were eliminated.”

First Respondent’s evidence
Ms Nozuko Nondlwana (Principal)

20. Ms Nozuko Nondlwana testified that she had been part of the shortlisting panel, as the resources person. As such, she received the applications from the department and took them to the school. She arranged a SGB meeting to select the panel. She then set a date for shortlisting. On the day of the shortlisting she gave the applications to the chairperson of the panel. The special SGB meeting on 23 September 2025, as per page 32 of R, was the meeting she had set up to select the panel for shortlisting and interviews. Page 36 of R is the minutes of the shortlisting meeting of 25 September 2025. Ms Guwa was the chairperson of the panel. There was nothing in these minutes indicating that she (Ms Nondlwana) had influenced the business of the day.
21. In relation to the part of the minutes, on page 38 of R, which stated that 6 applicants became 3 applicants after verification by the union and resource person, she explained that the panel had decided that they must ensure all was correct and double check same. The panel had already decided to throw the 3 applications out and were just informing them of this as well as the reasons for same. She disputed that she was actively involved or that she had targeted persons. She had only seen numbers and not names. She did not know which number corresponded with which name. She had not attempted to influence the process and none of the union observers had complained. The union had also ticked to confirm they believed the process was fair, on the form.
22. She agreed that as the resources person, it was part of her duties to ensure that the SGB applied the correct lawful criteria at shortlisting and that the department had initially conducted a sifting exercise. The purpose of the sifting, by the department, was to remove incomplete or noncompliant applications before same was sent to the SGB. Point 3.2 of A1, under the heading “Sifting” read as follows: The Eastern Cape Department of Education shall handle the sifting process to eliminate all those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. The records of all applications received shall be kept.” She agreed that the purpose of same was for incomplete or non-compliant applications to be removed before the applications were sent to the SGB. She also agreed that it was the department that had to sift and not the SGB. Despite this she believed that it was the panel that checked for completeness, however, she was not sure of same.
23. Despite point 3.4 of A1 stating that incomplete applications will not be considered after the sifting process has been completed, she was of the view that the department had sent them incomplete forms. She disputed that the forms were complete as stated in the Master List. She agreed that there was a shortlisting process prior to the one of 25 September 2025. The first shortlisting was done and they then discovered an application form, inside another form, which did not belong to their post. She then sought advice from their Circuit Manager (CMC), who said they were wrong to do the shortlisting with the said form being present and that they should therefore cancel the shortlisting done and take the said form to the department. The CMC took all the forms to check same and said they must redo the shortlisting. The minute of this first shortlisting was not in the bundles. She could not say why the criteria that was used had changed from the first to the second shortlisting meeting.
24. The CMC had said they must redo the process and he then came to do training again and said they must have another meeting to select the panel. She agreed that none of the candidates that were shortlisted in the first process were given reasons for the second process. She agreed that proper shortlisting required that minutes were kept of each shortlisting or interview committee meeting. They had only given the department the minutes of the correct shortlisting and not of the null and void one. When saying that a form had to be complete, it meant that each and every question (1 to 32) had to be completed. The Applicant’s form, starting on page 11 of A, had been marked as incomplete as 17.4 had not been completed.
25. She agreed that the Applicant met the minimum requirements for the post as per her form as well as her CV. Ms Ntame’s form started on page 58 of R. She agreed that on the said form the volume number was missing and the home contact number and fax number were missing. She also agreed that on this form it stated at 17.2 that Ms Ntame held a SPTD which was a 3 year diploma, however, on page 59 it stated that had a REQV14. Same had not been verified by them. She disagreed that the process was flawed in that it did not meet the requirements of Collective Agreement 1 of 2024. She disputed that the panel had done sifting which was a function of the department. She, however, agreed that once the applications arrived at the school, the panel only had to check them against the criteria they had set and sift them according to this.

Ms Thabisa Guwa (Shortlisting and interview panel chairperson)

26. Ms Thabisa Guwa testified that she was an SGB member and the chairperson of the shortlisting and interview panel. Page 36 of R was the minute of the shortlisting meeting on 25 September 2025, which she had been part of. They had checked the applications against the Master List. The Applications were taken out the box and placed on the table. The total number of applications were counted and same was checked against the number of applications on the Master List. This was done due to the number of applications and Master List numbers not having corresponded previously. Thereafter the applications were distributed to the panel members. They then agreed on criteria for short listing. There was no targeting of anyone during shortlisting as they had been told to use the number per the Master List and not names. As such they would not know who was being called.
27. Although she could not say what had happened with Ms Pako’s form, as they had dealt with numbers, when she was referred to the said form, starting on page 11 of R, she confirmed that certain parts were missing and that as such the form was incomplete. According to her the process was procedurally and substantively fair. As per page 32 of R, at the meeting (to select the panel) of 23 September 2025, Miss Ntlekisa and Mr Haya had been selected as teacher component and Miss Mpikeli, Miss Mapikata and herself had been selected as parent component. Despite this, page 33 of R confirmed that the 2 teacher representatives initially selected were changed. They were replaced by a different teacher (Ntlekisa) and a non-teaching staff member (Mkani). She agreed that there had been a short listing process prior to this, however, she had not been part of this first process.
28. The first process had been explained to the SGB. It was explained to them that the first process had a problem. The principal had enquired from the Circuit Manager who had instructed them to pause the process and select a new panel. They had said that the initial Master List and applications did not correspond. There was an application for another school in the pack of applications. They had been trained by the Circuit Manager for the second process. She could not recall if they had been trained that when the Master List and applications came from the department they could not sift them again but had to rather check them against their criteria. They had acted as they did as they were trying to be safe due to the issues in the first process. As such they decided to check the applications again.
29. In the panel meeting she had said that they had to check the forms for completion. The resource person did not give any guidance on this. The panel had determined the criteria. She could not remember if the resources person had given any guidance on criteria to be used for shortlisting. She agreed that that in terms of points 3.1 to 3.4 of A1, all applications that came to the school should have met the minimum requirements. She disagreed that the panel had not set criteria per the post but had rather used the sifting criteria of the department as seen on page 37 of R. She agreed, however, that as per the Master List, the department had already confirmed that the applications were complete and that they met the minimum requirements. She further agreed that the panel, per pages 34 and 35 of A, had done what the department had already done and added years of experience and that they had not looked at subjects etc.
30. When they had checked the applications against the Master List, she had the Master List and the applications were divided between the panel members. If a panel member picked up an issue with an application, such as it being incomplete, they would bring the form to her. She would then show the observer the issue before numbering it for the admin clerk to record. She agreed/conceded that as a result of this, she and the panel members were then aware of the names. She agreed with the principal that all sections of the application form had to be completed.
31. With a view of page 11 of A (Ms Pako’s form) and page 58 of R (Ms Ntame’s form) she confirmed that certain parts of Ms Pako’s form were incomplete. She felt that Ms Ntame’s form was complete, but conceded that the forms were brought to her by the panel members who had made the call on their own as to whether the form was complete or not. They had not set any criteria as to what would be regarded as a complete form. She also conceded that she did not know how the forms of the department had to be filled in. She did not know how the admin person had captured it, however, after the panel had agreed on 6 applications for interview, the panel decided to check the forms again and it was confirmed that three of them were incomplete.

Second Respondent’s evidence

32. The Second Respondent did not call any witnesses.
    Analysis
33. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
34. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”. (Own underlining)
35. The Applicant raised various challenges, which I will deal with hereunder.

Applicant claims to have been the best candidate.

36. I believe that this claim can be put to bed at the onset. Despite this claim by the Applicant, there was simply no evidence placed before me to, by any stretch of the imagination, conclude that the Applicant was the best candidate.

The Applicant would have been appointed, but for the irregularities.

37. This claim by the Applicant can also be put to bed at the onset. The reasoning for same is the same as the reasoning set out above. There is no evidence before me to indicate that but for the alleged irregularities she would have been appointed to the post.

The Applicant met all the requirements of the post and should have been shortlisted.

38. It is not disputed that the Applicant met the minimum requirements for the position in question. The reason given by the First Respondent for her not having been shortlisted was that her application form was incomplete, according to the panel. The Applicant argued that it is the function of the department to sift which includes checking that the applications are complete and that the applicants meet the minimum requirements. The Applicant relied on ELRC Provincial Collective Agreement 1 of 2024 in support of this argument. Clause 3 of this Collective Agreement reads as follows at 3.2 “The Eastern Cape Department of Education shall handle the sifting process to eliminate all those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. The records of all applications received shall be kept.” (Own underlining.)
39. Two points are to my mind clear from the above clause of the Collective Agreement. Firstly, it is clearly the responsibility of the department to handle the sifting process. Secondly, as part of same the department must eliminate the applications that do not comply with the requirements of the post, which then means that all applications sent to the school by the department should meet the requirements of the post. Clause 3.4 of the same Collective Agreement reads as follows: “Incomplete applications will not be considered after the sifting process has been completed.” (Own underlining.) Given that clause 3.2 confirmed that sifting shall be handled by the department, clause 3.4, in my view, means that incomplete applications will not be sent to the school for consideration as they will not be considered after the sifting process (which process is done by the department.) Put differently, once the department send an application to the school, it has satisfied itself that the application is complete and that the applicant meets the minimum requirements of the post.
40. The reasoning given by the First Respondent for not shortlisting the Applicant was that her application form was incomplete. There are, in my view, some fundamental issues with same. Firstly, as is evident from the above Collective Agreement, it is the function/responsibility of the department to sift applications in relation to their completeness and their meeting of the minimum requirements of the advertisement. The Collective Agreement specifically assigns this function to the department, which they did as per the Master List, where it is, inter alia, confirmed that the application is complete. It is not a function assigned to the shortlisting and interview panel or the SGB. The function of the shortlisting panel is to shortlist candidates based on the requirements of the post and school. If one looks at the criteria used by the panel, as per page 34 of A, as per paragraphs 12.1 to 12.7 above, they are clearly issues that must be considered by the department in carrying out its mandate to sift the applications.
41. Secondly, even if the panel/SGB did have the power to repeat the departments function in sifting, which I do not believe they did, the evidence indicated that there was no criteria set in relation to what would be regarded as an incomplete form. Each panel member appears to have been able to use their own discretion in this regard. Needless to say this is problematic as it could lead to inconsistencies in terms of which applications would be allowed and which not.
42. Thirdly, the evidence of the First Respondent’s witnesses is that the application form must be fully completed. This means that all parts of the form must be completed and that same includes putting “N/A” where not applicable. The notion of needing to put N/A where not applicable is, in my view, not supported by the application forms instructions. The applicable instruction is found at the top of the application form at point 2, which reads as follows: “Place an X in blocks where applicable.” There is no instruction to put “N/A” in blocks or sections that are not applicable. It should also, in my view, be obvious that if an applicant for example puts on the form that he/she has a Honours Degree and then leaves the part on Senior Research Degree open, same implies/confirms that he/she does not possess same. Clearly, if the applicant had such a qualification they would have listed same and given the required details on the form.
43. Fourthly, the evidence of the panel chairperson herself was that she did not know how the department’s forms needed to be filled in. If the panel chairperson was herself not sure of how the form had to be filled in, on what basis was it then decided that the forms were not filled in satisfactorily and/or complete? A call was made that the forms did not meet the requirements in that they were incomplete, however, there is a concession that the chairperson of the panel herself did not know what the requirements were for the filling in of the form. Clearly this is problematic.
44. Finally, if the strict requirement created by the panel, in that every section of the form must be completed, which includes putting N/A where needed, is applied, it is apparent that even the Second Respondent’s form would have fallen short of the requirement. She would then have been required to put N/A by home contact details and fax number, instead of just leaving it blank as she did. As stated, it is in my view an obvious conclusion that in this scenario, as the Second Respondent had given a cell phone number only, she in all likelihood did not have a home number or fax number. Despite this, if the panel set criteria they would have had to have implemented same fairly and consistently. It is clear that this was not the case, given that the Second Respondent’s application survived despite it also not being fully completed. This is also in my view unsurprising given that there were no criteria or guidelines set as to what would be regarded as an incomplete form.
45. Given the above, I am of the view that the panel/SGB exceeded their powers by assuming a function assigned to the department by the Collective Agreement. Even if I am incorrect in this, which I do not believe I am, the exercise of same was not consistent. I believe that the Applicant should have been shortlisted.

The process followed by the SGB was procedurally and substantively unfair.

46. The Applicant claimed that the process followed by the SGB was procedurally and substantively unfair. The basis of this claim is that the SGB had an initial shortlisting meeting but then disregarded same and held another shortlisting meeting. The Applicant claimed that same was as result of interference by the resources person (principal). It is clear from the evidence that there were indeed two shortlisting meetings held. The reasoning given, by the First Respondent’s witnesses for same was that there was an issue of an extra application which was later found. Said application was not for their post and neither was it on the Master List. While there may have been better ways of dealing with same, I do not believe that the First Respondent is prohibited from running the process afresh. I must add that despite this, I find it strange that minutes of this first meeting were not provided for completeness sake. These minutes as well as minutes confirming the reasoning for the second process would, in my view, have gone a long way in showing that there was no malice in the holding of the second process.
47. Despite this, however, I cannot find that there was any malice by holding the second process or that same was due to any interference of the resources person. In my view, what transpired appears to rather be as a result of a lack of knowledge/understanding by both the panel/SGB and lack of guidance and perhaps understanding by the resources person. I believe that, the First Respondent and/or the SGB should have kept those initially shortlisted in the picture as to the second process and reasoning therefore. I can accept that the criteria used for shortlisting may have changed somewhat between processes given that there were different panels, however, those criteria still needed to be with consideration subject and school requirements, etc. and not simply a regurgitation of the department’s sifting role.
48. Given all the above, I believe that the panel/SGB in taking over the sifting function assigned to the department, in terms of Provincial Collective Agreement 1 of 2024, exceeded its powers. Even if I am incorrect in the aforementioned conclusion, the alleged criteria (forms needing to be fully completed) was not applied consistently. In my view, this prohibited the Applicant from being able to compete fairly for the post and resulted in procedural unfairness.
49. In coming to a remedy, I have considered the facts and surrounding circumstances of this particular case, the fact that I have not been convinced that but for the procedural irregularity the Applicant would have been appointed and the lack of evidence indicating that if it were not for the procedural issue the applicant would have stood a good chance of being appointed. On the evidence presented and given that she would potentially have been competing with approximately 46 other candidates, it can, in my view, at best be said that she would have had a chance like any of the other candidates. I have also considered the interests of the learners and the school. Given that the circumstances and that the appointment of the Second Respondent was made approximately 11 months ago already, I accordingly do not believe that the setting aside of the Second Respondent’s appointment and the re-advertising of the position is the appropriate remedy. Particularly in view of the fact that there is no evidence before me indication that if same was done, the Applicant would probably be appointed. Such a remedy would, in my view, not be in the interest of either the school or more importantly the learners.
50. I am accordingly of the view that compensation is an appropriate remedy in the circumstances of this particular case. In coming to a value of compensation, I have considered that where an applicant has not proved that he/she was the best of all the candidates (as in this case) compensation is solely aimed at compensating the employee for non-patrimonial loss. Such compensation being in the form of solatium. The principal of conservatism is such award is well established by our courts. In view of all the aforesaid, I believe that compensation in the amount R5 000 will be an appropriate remedy.

Award

51. The Applicant, Ms Nonalela Pako, was subjected to an unfair labour practice by the First Respondent, the Department of Education – Eastern Cape, by it not shortlisting her for the position of Departmental Head at Chumani Primary School”.
52. As a result of the abovementioned unfair labour practice, the First Respondent is ordered to pay the Applicant compensation in the amount of R5 000.
53. The amount in paragraph 52 must be paid by 30 October 2026.

Signature:

ELRC Arbitrator: Clint Enslin