01 October 2026 – ELRC321-25/26GP

IN THE MATTER BETWEEN

MASIXOLE MAKWABE Applicant

AND

DEPARTMENT OF EDUCATION – GAUTENG PROVINCE Respondent
ASHNEE NAIDOO 2nd Respondent

ARBITRATION AWARD

CASE NUMBER: ELRC321-25/26GP
ARBITRATION DATE: 16 September 2025 – 25 August 2026
DATE OF AWARD: 30 September 2026
Pitsi Maitsha
ELRC ARBITRATOR
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

On 16 September 2026, this dispute came before me for arbitration. The matter was subsequently postponed. On 24 October 2026, the arbitration hearing proceeded face-to-face. The final arbitration hearing was held on 26 August 2026. The arbitration was conducted under the auspices of the Education Labour Relations Council (“ELRC”) in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995, as amended (“the LRA”). This award is issued in terms of section 138(7) of the LRA.
The applicant is Mr Masixole Makwabe, who was represented by Mr Thabo Mofokeng, a union official from SADTU. The first respondent is the Department of Education: Gauteng Province, as defined in section 1 of the Employment of Educators Act, 76 of 1998 (“the EEA”), and was initially represented by Ms Amelia Ngwenya, Deputy Chief Education Specialist: Labour Relations. The first respondent was subsequently represented by Mr Rhulani Makhuvele, Acting Deputy Director: Labour Relations.
The second respondent is Ms Ashnee Naidoo. She attended the proceedings and was initially represented by Ms Rozanne Visagie, a NAPTOSA official. She was subsequently represented by Mr KMBL Vusumuzi, a NAPTOSA official and the branch Gender Convenor.
The parties gave evidence under oath. The proceedings were digitally recorded, and the recordings were submitted to the Council.
ISSUE TO BE DECIDED
I am required to determine whether the first respondent’s decision not to appoint the applicant to the position of Departmental Head constituted an unfair labour practice relating to promotion. If so, I must determine the appropriate relief.
BACKGROUND DETAILS
On 16 September 2024, the parties held a pre-arbitration meeting and recorded their respective common cause facts and issues in dispute in the pre-arbitration minutes.
The following facts were recorded as common cause:
7.1 The applicant was initially employed by the first respondent temporarily as an Educator, PL1, with effect from 1 January 2019. He was subsequently appointed on a permanent basis with effect from 1 January 2020 at Sandown High School. He teaches English Home Language and Social Sciences.
7.2 The first respondent advertised a Departmental Head position, PL2, responsible for History, Geography and Social Sciences from Grade 8 to Grade 12.
7.3 Both the applicant and the second respondent applied for the advertised position. They were shortlisted and subsequently interviewed on 19 September 2024.
7.4 Following the interview process, the interview panel recommended the second respondent for appointment to the position of Departmental Head.
7.5 The second respondent was ranked first, while the applicant was ranked second.
7.6 The first respondent proceeded to appoint the second respondent in accordance with the recommendation of the School Governing Body (“SGB”), with the appointment taking effect on 1 May 2025.
7.7 The applicant did not lodge a grievance in respect of the appointment process.
7.8 At the time of the arbitration proceedings, the applicant earned a basic salary of R23 336,50 per month.
The following issues were recorded as being in dispute:
8.1 Whether the appointment of the second respondent was fair and lawful;
8.2 Whether the applicant was the most suitably qualified candidate for appointment to the position of Departmental Head;
8.3 Whether the appointment process, including the composition and/or appointment of the interview panel, was procedurally fair;
8.4 Whether the first respondent’s decision to appoint the second respondent complied with the applicable gender equity requirements in terms of the Employment Equity Act and Circular 9 of 2020; and
8.5 Whether the first respondent properly considered the applicable employment equity and other relevant criteria when making the appointment.
Aggrieved by the failure to appoint him to the position, the applicant referred an alleged unfair labour practice dispute relating to promotion to the ELRC. The applicant seeks an order setting aside the appointment of the second respondent and an order relating to the post with reference number JE24ED1057GE. The first respondent seeks the dismissal of the applicant’s claim.
THE APPLICANT’S SUBMISSIONS
THE EVIDENCE OF THE APPLICANT
The applicant testified that he obtained a Bachelor of Arts (“BA”) degree from the University of the Western Cape in 1998, majoring in English and Political Studies. He indicated that he also studied History up to second-year level. He subsequently obtained an MBA, which he commenced in 2013 and completed in 2015. In 2018, he obtained a Post-Graduate Certificate in Education (“PGCE”). He further obtained a Bachelor of Honours degree from the University of the Witwatersrand (“Wits”) in 2025. He also holds various certificates relating to information technology, including Microsoft applications, Microsoft Windows, Excel, Outlook and Word. He further referred to certificates of achievement and facilitator awards received while employed at Sandown High School.
The applicant testified that he received a certificate of achievement relating to matric results, having achieved a 97% pass rate. He further testified that the district recognised him for achieving a 100% learner pass rate in 2024.
Regarding his teaching and professional experience, the applicant testified that his experience in education commenced in 2018. While he was still a student, he became involved with the School Governing Body (“SGB”) and was elected as a parent member, serving for two terms. He commenced his professional teaching experience at Jim Fourscher, where he occupied a substitute post for approximately four months and thereafter for a further two months. In 2019, he occupied another substitute post at The Hill High School and subsequently requested permission from the Deputy Principal to remain at the school until the end of the year.
The applicant testified that he has been employed at Sandown High School since 2020, where he teaches English Home Language and Social Sciences. He has performed various additional functions at the school, including serving in management structures, serving as an SGB member for two executive terms, acting as disciplinary coordinator for approximately four years, participating in curriculum-related activities for approximately four years, serving as an examiner, and acting as a Departmental Head for approximately six months before applying for the advertised position. He further testified that he has served as a SADTU site steward and participated in various school committees for more than three years.
The applicant explained that methodology refers to the training received by a teacher on how to teach a particular subject. He testified that, by virtue of his PGCE, he is qualified to teach English Home Language and Social Sciences. He stated that teaching practice forms part of the professional teacher training qualification and that a person cannot obtain SACE registration without satisfying the applicable professional requirements.
The applicant testified that the subjects specified in the advertisement were Geography for Grades 8 to 12, History for Grades 8 to 12 and Social Sciences for Grades 8 and 9. He contended that Social Sciences incorporates both History and Geography and that his qualifications and teaching experience therefore rendered him suitably qualified for the advertised position.
The applicant testified that he attended the interviews but observed what he considered to be irregularities in the interview process. In particular, he stated that he did not observe a departmental resource person who would ensure that the process was properly followed, fair and compliant with the applicable requirements.
He referred to the minutes of the interview conducted for the Departmental Head position, reference number J24ED1057, held on 19 September 2024 at the Maslow Hotel. According to the minutes, the persons present included Mrs Sureya van Schalkwyk as Chairperson of the panel, Mr Robert Ravhura and Ms Mapula Mokete as panel members, Ms Sindi Nkosi as the scribe, Mr Michael Mogomane as the SGB representative and Mr Theo Tshiatahe as the NAPTOSA representative.
The applicant testified that the interview panel had not determined or recorded any criteria to be applied in assessing the candidates.
He further testified that a departmental resource person does not score candidates in the same manner as the departmental observer.
The applicant referred to clause 8 of Collective Agreement No. 1 of 2021, dealing with the interview committee. He testified that clause 8(1) provides that the interview committee must be appointed at a formal SGB meeting in accordance with section 13(10)(a) of the South African Schools Act (“SASA”).
The applicant further referred to section 23(6) of SASA, which provides for the SGB to co-opt a member or members of the community to assist it in discharging its functions. He also referred to the provisions concerning the appointment of an independent interview committee and testified that such appointment had to comply with the applicable provisions of SASA and the relevant collective agreement.
The applicant testified that the decision to appoint and approve an independent interview panel could only be made by the Head of Department after the prescribed process had been followed. He stated that the outcome of the interview process would thereafter be communicated to the relevant SGB at a formal meeting.
He further testified that the SGB could request the Head of Department or delegated authority in writing, with reasons, to appoint an independent interview panel. He stated that the minutes and attendance register of the relevant SGB meeting were required to form part of such request. He further testified that SGB members could request observer status, subject to the applicable limitation, and that an SGB member was required to recuse himself or herself where the member had a personal or vested interest in the matter.
The applicant referred to section 22 of SASA and testified that the Head of Department may, on reasonable grounds, withdraw a function of a governing body. He further referred to section 22(1). He testified that the Head of Department could not exercise that power without first informing the governing body of the intention and the reasons therefor, and affording the governing body a reasonable opportunity to make representations.
The applicant testified that the advertisement required, amongst other things, knowledge and competence relating to Social Sciences and leadership.
The applicant referred to his academic transcripts and the contents of his Wits qualification. He testified that his studies included English Language Teaching, Theory of Education and Social Sciences, and that he had completed all the requirements for the qualification. He further referred to the language endorsement on his academic record and stated that he was competent to teach in English and had proficiency in isiXhosa.
The applicant testified regarding the academic qualifications of the second respondent, Ms Ashnee Naidoo. He referred to her academic record from the University of KwaZulu-Natal, which reflected a Bachelor of Arts degree with subjects including Afrikaans, Psychology, Sociology, English and Geography.
He further testified that Ms Naidoo obtained a Higher Diploma in Education (“HDE”), which included subjects such as English Usage, Principles of Education, Special Method for English, Special Method Guidance and Teaching Practice.
The applicant testified that Ms Naidoo was accordingly qualified to teach English and Guidance. He also referred to her certificate in Introduction to Geographic Information Systems (“GIS”), which he stated was a short learning programme at NQF Level 7.
The applicant contended that the GIS certificate did not qualify Ms Naidoo to teach Geography or to head the Geography subject at a school because it did not provide the professional teaching methodology required for teaching the subject. He contrasted this with his own PGCE, which he stated specifically equipped him with the professional methodology necessary for teaching.
The applicant referred to the document entitled “Evaluation of Qualifications for Employment in Education” and testified that the document sets out the criteria applicable when evaluating qualifications for employment in education.
He referred specifically to clause 7, which provides, according to his testimony, that a qualification is recognised from the date on which an educator satisfies all the requirements for obtaining the qualification, as confirmed by the examining body, or, in the absence of such confirmation, from the date on which the certificate was issued.
He further referred to clause 8 and testified that an educator whose qualifications have previously been evaluated by an education department retains the recognition afforded to those qualifications for the duration of his or her teaching career, subject to applicable requirements relating to professional development and career progression.
The applicant testified that his University of the Western Cape degree included English I, II and III, Political Studies I, II and III, History I, II and III, Philosophy 103 and English 103. He explained that, although he had studied History up to third-year level, the BA degree alone did not qualify him to teach. According to his evidence, it was the PGCE that provided him with the professional teaching qualification. He stated that he was therefore qualified to teach English and Social Sciences.
The applicant further testified that Ms Naidoo specialised in English and Guidance and that, in his view, she was not qualified to teach the other subjects specified in the advertisement.
The applicant referred to the Personnel Administration Measures (“PAM”) and testified that the requirements for a school-based educator appointed as a Departmental Head included a recognised three- or four-year qualification incorporating professional teacher education, SACE registration as a professional educator, appropriate functional and generic competencies, and at least three years’ actual teaching experience.
The applicant further referred to Circular 1 of 2022 concerning the Employment Equity Plan and testified that the Gauteng Department of Education had committed itself to complying with the Employment Equity Act and addressing under-representation in respect of gender, race and disability at the various occupational levels.
Regarding the interview results, the applicant testified that Ms Naidoo obtained a score of 54, Mr Moremi obtained a score of 46, and he obtained a score of 47. He stated that Ms Naidoo was ranked first, he was ranked second, and Mr Moremi was ranked third.
The applicant testified that the SGB accepted and adopted the interview panel’s recommendation. He disputed that the process demonstrated that the interests of the learners had been properly considered.
The applicant characterised the decision-making process as capricious and submitted that it was undertaken in bad faith. He contended that the appropriate remedy was to promote him retrospectively to the position.
Under cross-examination, the applicant testified that the school had experienced various challenges concerning the relationship between the SGB and the district management team. He stated that the district management team had, in his view, interfered with SGB processes, particularly in relation to human-resource matters.
The applicant testified that these interactions caused him to believe that the independent interview panel might not have been requested by the SGB but could instead have been imposed upon it. He stated that the minutes and attendance register of the SGB meeting at which the decision to request an independent panel was allegedly taken had not been provided to him and that he was unaware of any such written request or approval.
The applicant confirmed that he was a SADTU site steward and regularly engaged management on workplace issues. He testified that, through these engagements, he formed the view that he was not favourably regarded by management. He contended that the appointment of an independent panel was connected to his role as a site steward and his raising of workplace concerns.
The applicant conceded that Ms Naidoo had approximately 22 years of teaching experience. He further acknowledged that the Department currently had approximately 46% male representation.
Notwithstanding the interview ranking, the applicant maintained that he ought to have been appointed because, in his view, he possessed qualifications that Ms Naidoo did not possess. He further testified that the advertisement stated that preference should be given to African males.
The applicant testified that there was no deliberation recorded in the interview documentation explaining why the panel had allegedly departed from the applicable employment equity considerations.
He further maintained that the interview panel had not recorded the criteria according to which the candidates would be assessed. He explained that, in his understanding, the criteria constituted the plan or framework according to which candidates would be scored and that such criteria should have been reflected in the minutes.
THE APPLICANT’S CLOSING ARGUMENTS
Mr Thabo Mofokeng, on behalf of the applicant, submitted that the first respondent had violated various binding policies, collective agreements and legislative provisions governing appointments in public education, including the applicable qualification framework and chapter B of the PAM.
He submitted that the advertised PL2 position expressly required a professional qualification relating to Social Sciences, Geography or History. He contended that the second respondent’s HDE qualified her principally to teach English and Guidance and that she therefore did not satisfy the subject-matter requirements of the advertised post.
Mr Mofokeng argued that the appointment of a candidate who, according to his submission, did not possess the required subject-matter qualification constituted a breach of the minimum requirements contained in the PAM.
He further challenged the second respondent’s involvement in external roles such as moderation and chief deputy marking, contending that an educator could not properly perform such functions in a subject in which she was not qualified to teach.
Mr Mofokeng submitted that the interview panel had manipulated or altered the criteria in a manner that favoured the second respondent. He characterised the process as collusive and argued that the criteria had been applied inconsistently.
He further submitted that the Employment Equity Plan of the Gauteng Department of Education had been improperly disregarded. He contended that the employment equity considerations identified during the shortlisting process required preference to be given to an African male candidate.
Mr Mofokeng challenged the evidence of Mrs van Schalkwyk, the chairperson of the interview panel, and submitted that her evidence contained material contradictions and that she had failed to provide a satisfactory explanation for the manner in which the appointment process was conducted.
He submitted that the first respondent had acted arbitrarily and capriciously and had failed to properly apply its mind to the qualifications and suitability of the candidates.
He further submitted that remitting the matter for reconsideration would not adequately remedy what he described as a fundamentally flawed process. He accordingly argued that protective promotion was the appropriate remedy.
Mr Mofokeng requested that an award be issued finding that the first respondent had committed an unfair labour practice relating to promotion and ordering the applicant’s appointment to the PL2 Departmental Head position, together with back pay and benefits retrospectively from the date on which the second respondent was appointed.
THE RESPONDENTS’ SUBMISSIONS
THE EVIDENCE OF MICHAEL MOGOMANE: SGB CHAIRPERSON
Mr Michael Mogomane testified that he had been the Chairperson of the School Governing Body (“SGB”) since the commencement of the term in April 2024. He further testified that, as a member of the SGB, he had participated in the shortlisting of candidates on three occasions.
Mr Mogomane testified that an independent interview panel was appointed to conduct the interview process. He explained that, on the day on which the SGB was scheduled to select the interview panel, the members of the panel arrived late and were not prepared. The shortlisting process had been scheduled to commence at approximately 15h00.
He testified that an individual arrived at the venue and became disruptive, raising complaints with the THRS Sub-Directorate. The individual introduced himself as a SADTU representative and indicated that they were required to wait for other members to arrive. According to Mr Mogomane, the required quorum was not constituted, and the SADTU representative continued to raise objections. The meeting was consequently postponed.
Mr Mogomane testified that he subsequently convened an SGB meeting at which he explained what had transpired. He stated that the SGB had previously experienced a grievance in relation to which it had been unsuccessful. He therefore proposed that an independent interview panel be appointed. A resolution was taken by the SGB, and a letter was thereafter sent to the district office requesting the appointment of an independent panel. The request was approved. Mr Mogomane testified that he attended the subsequent process as an observer.
He testified that the District Director approved the request and that Ms Sureya van Schalkwyk, who was the Independent District Staff Officer (“IDSO”), was appointed to participate in the process. He could not recall the identity of the other observer.
Mr Mogomane testified that the union subsequently addressed a request to the Department for the SGB minutes and attendance register. He stated that the request was conveyed to him but that the documents could not be produced because the relevant records were missing, including the letter addressed to the district office requesting the independent panel. He stated that he would have expected the letter to form part of the recruitment file.
He disputed the suggestion that the independent panel had been imposed on the SGB. He testified that there had been no improper interaction between the SGB and the district office concerning the appointment of the independent panel.
Mr Mogomane testified that he had known the applicant for as long as the applicant had been a member of the SGB.
He further testified that he was aware of the ratification minutes relating to the appointment process. According to his evidence, the independent panel presented three names to the SGB. Ms Naidoo was ranked first, and the applicant was ranked third, although he could not recall the name of the remaining candidate. He testified that deliberations took place and that the applicant was regarded as the internal candidate. The SGB ultimately accepted the recommendation of the interview panel.
Under cross-examination, Mr Mogomane testified that he could not recall who had acted as the scribe during the relevant meeting. When it was put to him that he had been dishonest in his evidence, he responded that this was Mr Mofokeng’s view. He reiterated that he did not know where the relevant minutes were kept.
He confirmed that the meeting did not proceed at the time initially scheduled because the required quorum had not been constituted. When it was put to him that he had an ulterior agenda when he supported the appointment of an independent panel, he again stated that this was Mr Mofokeng’s view.
THE EVIDENCE OF SUREYA VAN SCHALKWYK: FORMER IDSO/CLUSTER LEADER
Ms Sureya van Schalkwyk testified that she knew the applicant from the period during which she served as a Cluster Leader. She further testified that she was appointed as the chairperson of the interview panel on 9 September 2024 after being requested to stand in for her senior, who was on sick leave at the time.
Ms van Schalkwyk testified that the additional requirements contained in the advertisement included leadership, information and communication technology (“ICT”) and administrative skills. The subject requirements were Geography from Grades 8 to 12, History from Grades 8 to 12 and Social Sciences from Grades 8 to 9.
She explained that the district was divided into five circuits and that the relevant school fell within Circuit 3. Each circuit had an official responsible for governance matters.
Ms van Schalkwyk testified that the panel recommended a female candidate after taking the applicable shortlisting criteria into account. She stated that gender was considered through the information contained in the GDE 2R forms, which had replaced curriculum vitae in the recruitment process.
She further referred to Circular 9 of 2020, which, according to her evidence, addresses transformation and identifies the gender and racial considerations applicable to appointments. She testified that the panel applied the relevant equity criteria and considered the demographic composition reflected in the candidates who had been shortlisted.
Ms van Schalkwyk testified that a PGCE is a postgraduate qualification that prepares an individual for the teaching profession. She explained that the qualification prepares an educator to teach subjects such as Social Sciences and History, depending on the requirements of the school.
She testified that the advertisement did not expressly require a specific academic qualification in respect of the subjects advertised.
Ms van Schalkwyk testified that the applicant had approximately one year of teaching experience in Social Sciences. She further testified that Ms Naidoo had completed a postgraduate diploma, as reflected in her academic record, on 31 December 2018.
She testified that both candidates had academic exposure to History and Geography and that the relevant subjects therefore covered portions of the requirements of the advertised position. According to her evidence, the applicant had approximately six months’ teaching experience in Geography and Social Sciences, whereas the second respondent had relevant teaching experience in the subject areas.
Ms van Schalkwyk testified that Ms Naidoo was qualified and suitable for the position. She explained that, in determining suitability, consideration was given to whether a candidate had the capacity to perform the functions of the post and possessed a relevant qualification and experience enabling the candidate to perform the required duties.
She testified that Ms Naidoo performed the best during the interview process and that all candidates were treated equally.
Under cross-examination, Ms van Schalkwyk testified that she had come to know Ms Naidoo through the interview process. She further testified that she knew Ntlhamo, who had subsequently complained about her and accused her of favouring Ms Naidoo. She disputed the suggestion that she had favoured Ms Naidoo.
THE FIRST RESPONDENT’S CLOSING ARGUMENTS
Ms Rhulani Makhuvele, on behalf of the first respondent, submitted that the applicant had failed to demonstrate how the appointment of an independent interview panel had prejudiced him.
She submitted that the SGB Chairperson had confirmed that a request had been made to the district office for the appointment of an independent panel. She referred to clause 8 of Collective Agreement No. 1 of 2021 and submitted that the SGB was entitled to request the Head of Department or delegated authority to appoint an independent interview committee in writing and to provide reasons for such request.
Ms Makhuvele submitted that Ms van Schalkwyk had explained that the applicant was not appointed because qualifications were not the only consideration. The applicant’s teaching experience and capacity to perform the functions of the post were also considered.
She submitted that the applicant had approximately one year of Social Sciences teaching experience and that, according to his GDE 2R profile, he had not taught Social Sciences at Grades 10 to 12 level. She further submitted that he had no relevant teaching experience in History and that his principal teaching subject was English, which was not one of the subject requirements of the advertised post.
In contrast, Ms Makhuvele submitted that Ms Naidoo had relevant Geography experience and approximately 22 years of teaching experience. She further relied on Ms Naidoo’s experience as a Deputy Chief Marker for the National Senior Certificate examinations and as a provincial moderator.
Ms Makhuvele submitted that the advertised post required relevant subject experience in Geography or History at the senior level and that Ms Naidoo’s profile corresponded with the requirements of the advertised position.
She submitted that the decision to appoint Ms Naidoo was neither arbitrary nor discriminatory but constituted a merit-based appointment made within the discretion of the employer.
Ms Makhuvele accordingly submitted that the first respondent had not committed an unfair labour practice relating to promotion and requested that the applicant’s dispute be dismissed.
THE SECOND RESPONDENT’S CLOSING ARGUMENTS
Mr Sinci, on behalf of the second respondent, submitted that the applicant had failed, on a balance of probabilities, to establish that he had been subjected to an unfair labour practice relating to promotion.
He submitted that the applicant’s principal procedural complaint concerned the appointment of an independent interview panel, which the applicant alleged had been “imposed” to his detriment and formed part of an agenda to interfere with the appointment process. Mr Sinci submitted that these allegations were unsubstantiated and had been contradicted by the evidence presented by the respondent.
He submitted that the relevant selection criteria were contained in clause 11.11 of Collective Agreement No. 1 of 2020, which, according to his submission, required consideration to be given to qualifications, experience and the candidate’s capacity to perform the duties of the post.
Mr Sinci submitted that Ms Naidoo possessed direct and practical experience in teaching Geography at Grades 10 to 12, being the Further Education and Training (“FET”) phase. He argued that the applicant had conceded that he did not have teaching experience in Geography or History at that level.
He submitted that, although the applicant had Social Sciences teaching experience, such experience was confined to the lower grades.
Mr Sinci further relied on Ms Naidoo’s experience as a Deputy Chief Marker for national examinations. He submitted that this role was not merely administrative but demonstrated her subject-matter knowledge, understanding of the curriculum and assessment standards, and her capacity to manage and guide other educators during the marking process.
He argued that these factors demonstrated Ms Naidoo’s capacity to perform the duties of the advertised position and submitted that the allegation that she was not suitably qualified was without merit.
Mr Sinci further submitted that both the applicant and Ms Naidoo possessed postgraduate teaching qualifications and that the applicant had failed to establish that Ms Naidoo did not meet the requirements of the advertised position.
He accordingly submitted that the applicant had failed to establish an unfair labour practice relating to promotion and prayed that the applicant’s claim be dismissed.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
This matter concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the LRA”). The applicant bears the onus of establishing, on a balance of probabilities, that the conduct of the first respondent constituted an unfair labour practice relating to promotion.
The applicant testified in support of his case and submitted a bundle of documents, hereinafter referred to as “Bundle A”. The first respondent called two witnesses, namely Mr Michael Mogomane and Ms Sureya van Schalkwyk, and submitted documentary evidence contained in Bundles R1 and R2.
THE APPLICABLE TEST IN PROMOTION DISPUTES
Section 186(2)(a) of the LRA defines an unfair labour practice as an unfair act or omission that arises between an employer and an employee involving, inter alia, unfair conduct by the employer relating to promotion.
It is trite that an employee does not acquire an automatic right to promotion merely because he or she applied for, or was shortlisted for, a position. In determining whether an unfair labour practice relating to promotion has been established, regard must be had to whether the employer exercised its discretion in a manner that was arbitrary, capricious, unfair, based on an unreasonable or improper motive, or in disregard of applicable procedural requirements.
In Department of Justice v CCMA and Others, the courts have considered the nature of promotion disputes and the circumstances in which conduct relating to promotion may constitute an unfair labour practice. The enquiry is therefore not simply whether the applicant was a suitable candidate, but whether the conduct complained of was unfair within the meaning of section 186(2)(a) of the LRA.

WHETHER THE SECOND RESPONDENT MET THE REQUIREMENTS OF THE ADVERTISED POST
103. It is common cause that a PL2 Departmental Head position at Sandown High School became vacant and was advertised. It is further common cause that both the applicant and the second respondent, Ms Naidoo, applied for the position, were shortlisted and participated in the interviews conducted on 19 September 2024.
104. It is further common cause that the interview panel ranked Ms Naidoo first, with a score of 54, the applicant second, with a score of 47, and Mr Moremi third, with a score of 46. The first respondent subsequently appointed Ms Naidoo with effect from 1 May 2025.
105. The first issue requiring determination is whether Ms Naidoo met the requirements of the advertised position.
106. The advertisement required, amongst other things, a three-year qualification with specialisation in Geography, History or Social Sciences. The applicant relied on his qualifications from the University of the Western Cape and Wits University and testified that he had studied History and Social Sciences. He further relied on his PGCE and his teaching experience.
107. The applicant also conceded that his professional teaching qualification enabled him to teach English Home Language and Social Sciences. It is therefore not in dispute that the applicant possessed qualifications and experience relevant to at least part of the advertised requirements.
108. Ms Naidoo, on the other hand, obtained a Bachelor of Arts degree from the University of KwaZulu-Natal and a Higher Diploma in Education. Her academic record reflected studies in, amongst other subjects, Geography. She also obtained an NQF Level 7 certificate in Introduction to Geographic Information Systems.
109. The applicant’s principal challenge was that the GIS qualification did not constitute a professional teaching qualification in Geography and did not provide the methodology required to teach Geography. He accordingly contended that Ms Naidoo was not suitably qualified for the position.
110. I do not agree with this contention. The question is not whether the GIS certificate, standing alone, constitutes a teaching qualification. The relevant enquiry is whether Ms Naidoo, considered as a whole, possessed the qualifications and experience required for the advertised post.
111. The evidence establishes that Ms Naidoo possessed a three-year qualification together with a Higher Diploma in Education and had academic exposure to Geography. She also had substantial teaching experience. The evidence of Ms van Schalkwyk was that the advertisement did not prescribe a specific professional qualification in each of the listed subjects as a prerequisite for appointment.
112. The Personnel Administration Measures (“PAM”) prescribe the minimum qualification requirements for appointment to a promotional post. On the evidence before me, I am satisfied that Ms Naidoo possessed the requisite recognised qualification and professional teaching qualification to be considered for the post.
113. It is also significant that the advertised post required the Departmental Head to oversee the relevant department and did not state that the successful candidate was required to teach every subject from Grade 8 to Grade 12 personally.
114. The evidence further established that Social Sciences is offered at Sandown High School in Grades 8 and 9, while Geography and History extend into the higher grades. The applicant did not place sufficient evidence before me to establish that the advertisement required the successful candidate to possess a teaching methodology qualification specifically in all three subject areas.
115. I accordingly find that Ms Naidoo met the minimum requirements of the advertised position and was eligible to be considered for appointment.
WHETHER THE SECOND RESPONDENT WAS THE MOST SUITABLE CANDIDATE
116. The applicant contended that he was more suitably qualified than Ms Naidoo and that the interview panel ought therefore to have recommended him.
117. The evidence, however, demonstrates that the panel considered more than academic qualifications. The evidence of Ms van Schalkwyk was that the candidates were assessed with reference to their qualifications, experience, skills and capacity to perform the functions of the post.
118. The applicant had teaching experience in English and Social Sciences and had acted as a Departmental Head for approximately six months. Ms Naidoo had substantial teaching experience, including experience relevant to Geography, and had served as a Deputy Chief Marker for the National Senior Certificate examinations and as a provincial moderator.
119. The applicant acknowledged during cross-examination that Ms Naidoo had approximately 22 years of teaching experience.
120. It is not for the arbitrator to substitute his or her own assessment of the candidates for that of the properly constituted selection panel merely because another candidate believes that he or she was the stronger candidate.
121. The evidence before me establishes that the panel assessed the candidates and awarded Ms Naidoo the highest score. The applicant has not demonstrated that the scoring was based on an impermissible criterion or that the outcome was predetermined.
THE APPOINTMENT OF THE INDEPENDENT INTERVIEW PANEL
122. The next issue concerns the applicant’s challenge to the appointment of the independent interview panel.
123. The applicant alleged that the independent panel had been imposed upon the SGB and that its appointment formed part of an improper attempt to prejudice him. He further relied on the absence of the SGB minutes, attendance register and request letter from the documentary record.
124. Mr Mogomane testified that the SGB had experienced difficulties when the original process was scheduled to commence. According to his evidence, the required quorum was not present, and the meeting could not proceed. He subsequently convened an SGB meeting at which the matter was discussed and a resolution was taken to request the appointment of an independent panel. He testified that a request was thereafter sent to the district and approved.
125. Mr Mogomane’s evidence was not entirely satisfactory in respect of the documentary trail. He could not produce the relevant minutes, attendance register or request letter and stated that the documents were missing. This is a material deficiency in the respondent’s explanation of the process.
126. However, the mere absence of those documents does not, without more, establish that the independent panel was unlawfully imposed or that its appointment was motivated by an intention to prejudice the applicant.
127. More importantly, the applicant was required to demonstrate the unfairness flowing from the alleged procedural irregularity. The applicant did not identify any specific question, scoring mechanism, conduct of a panel member or other aspect of the interview which placed him at a disadvantage because an independent panel was used.
128. The applicant also did not establish that the members of the independent panel acted with a predetermined intention to appoint Ms Naidoo.
129. The applicant relied on an allegation that Ms van Schalkwyk favoured Ms Naidoo. Ms van Schalkwyk denied the allegation and testified that any complaint concerning her alleged favouritism had arisen after the interviews. No independent evidence was presented to establish that she had acted with bias during the interview process.
130. The applicant further complained about the absence of a departmental resource person. However, he did not establish that the absence of such a person rendered the interview process invalid or that it caused him any identifiable prejudice.
131. I accordingly find that, although there were shortcomings in the documentary evidence concerning the appointment of the independent panel, the applicant has not established that those shortcomings resulted in an unfair process or materially prejudiced his candidacy.
WHETHER THE INTERVIEW PROCESS WAS FAIR
132. The applicant further challenged the constitution and functioning of the interview panel and alleged that the panel had manipulated the criteria in order to favour Ms Naidoo.
133. The evidence does not support this allegation. The interview minutes record the candidates’ scores, and the evidence of Ms van Schalkwyk was that the panel considered the relevant requirements, including qualifications, experience, skills and the applicable employment equity considerations.
134. The applicant alleged that no criteria had been agreed upon. However, the evidence does not establish that the panel proceeded without any criteria whatsoever. The panel applied the requirements contained in the advertisement and considered the candidates’ profiles and experience.
135. Even if there were shortcomings in the manner in which the criteria were recorded, the applicant was required to establish that the alleged irregularity affected the outcome of the process or caused him prejudice. He did not do so.
136. I therefore find that the applicant has failed to establish that the interview process was conducted in bad faith, arbitrarily or for an improper purpose.
EMPLOYMENT EQUITY AND CIRCULAR 9 OF 2020
137. The final issue concerns the applicant’s contention that the first respondent failed to properly apply the applicable employment equity requirements and Circular 9 of 2020.
138. The applicant relied on the minutes of the shortlisting process, particularly the section dealing with the discussion and finalisation of the criteria. He submitted that reference was made to Circular 9 of 2020, and that preference was to be given to male candidates.
139. However, the applicant’s own evidence indicates that no final decision was recorded in the minutes requiring the appointment of an African male candidate. His assertion that the post required the appointment of an African male was therefore not sufficiently substantiated.
140. Ms van Schalkwyk testified that the panel considered the applicable equity criteria after considering the gender composition of the candidates. Her evidence was that the relevant equity considerations formed part of the overall assessment.
141. There is insufficient evidence before me to conclude that Circular 9 of 2020 required the appointment of the applicant solely because he was an African male or that the first respondent was legally obliged to disregard the interview results in favour of such appointment.
142. Employment equity considerations must be applied within the framework of the applicable legislation, policies and recruitment criteria. The applicant has not established that the first respondent’s consideration of the candidates amounted to a failure to apply the applicable employment equity requirements.
OVERALL ASSESSMENT
143. Having considered the totality of the evidence, I am satisfied that Ms Naidoo met the minimum requirements of the advertised post and that the interview panel assessed the candidates based on their qualifications, experience, skills and capacity to perform the functions of the post.
144. The applicant was ranked second by the interview panel. The fact that he was an internal candidate, possessed relevant qualifications and had acted as a Departmental Head did not confer upon him an entitlement to appointment.
145. The applicant’s contention that he was the better candidate does not, in itself, establish an unfair labour practice. The evidence does not establish that the first respondent exercised its discretion in a manner that was arbitrary, capricious, discriminatory, biased or based on an improper motive.
146. I have also considered the applicant’s contention that the appointment of the independent panel was procedurally irregular. Although the respondent was unable to produce the documentary evidence relating to the SGB’s request for the independent panel, the applicant failed to demonstrate that this omission caused him material prejudice or affected the outcome of the selection process.
147. I further accept that the appointment of an independent panel may, in appropriate circumstances, serve to safeguard the integrity and impartiality of the recruitment process. In the circumstances of this matter, the applicant has not established that the independent panel was appointed for an improper purpose or that it acted in a manner that rendered the process unfair.
148. It is trite that an employer retains a measure of discretion in making appointments to promotional positions, provided that such discretion is exercised fairly, rationally and in accordance with the applicable statutory and procedural framework. An arbitrator should not simply substitute his or her own preference for that of the employer or selection panel in the absence of established unfairness.
149. On the evidence before me, the applicant has failed to demonstrate that the first respondent’s decision to appoint Ms Naidoo was influenced by bad faith, bias, an improper motive or an impermissible criterion. He has likewise failed to establish that the procedural shortcomings relied upon by him materially prejudiced him.
150. I accordingly find, on a balance of probabilities, that the applicant has failed to discharge the onus of establishing that the first respondent committed an unfair labour practice relating to promotion as contemplated by section 186(2)(a) of the LRA.
AWARD
151. I find that the applicant, Masixole Makwabe, has failed to establish the existence of an unfair labour practice relating to promotion.
152. The applicant’s referral is accordingly dismissed.

P. Maitsha
ELRC Panelist