Case Number: ELRC421-25/26GP
Commissioner: Ntjatja Klaas Aphane
Date of Award: 30 September 2026

In the ARBITRATION PROCEEDINGS between:
CALFONIA MASHAVHATHANGA
(The Applicant)
And
DEPARTMENT OF EDUCATION: GAUTENG PROVINCE
(The First Respondent)
And
ROSE MMAMPELE TIBANE
(The Second Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. This arbitration award concerns an alleged unfair labour practice relating to promotion. The parties are Calfonia Mashavhathanga, the Applicant; the Department of Education: Gauteng Province, the First Respondent; and Rose Mmampele Tibane, the Second Respondent.
2. The dispute was referred to the ELRC in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA). The arbitration was conducted under the auspices of the ELRC in terms of section 191(5)(a) of the LRA, and this award is issued in terms of section 138(7) of the LRA.
   Hearing dates and venue
   • The arbitration was scheduled and heard on 17 September 2025 through MS Teams, and on 21 November 2025, 13 March,27 July 2026 at Mamelodi Teachers Centre and 31 August 2026 at Ribane Laka High School.
   • All parties and witnesses attended in person at the Department of Education, Mamelodi Teacher Centre and Ribane Laka High School on different dates.
   Representation
   • The Applicant appeared in person and was represented by his trade union official, Dr Coleman Dube of PSA, with Pamela Kekana attending as an observer, on 21 November 2025 and 13 March 2026.
   • The First Respondent was represented by its Labour Relations Manager, Leka Magodielo.
   • The Second Respondent appeared in person and she was represented by her trade union officials, Enock Senoamadi (21 November 2025), Sifiso Mnisi (13 March 2026), Edward Madonsela (27 July 2026) and Sifiso Mnisi (31 August 2026) all of SADTU.
   Record and relief sought
   • The proceedings were digitally recorded and handwritten notes were also taken.
   • The Applicant sought protective promotion to the post of Departmental Head (PL2) at Mamelodi East Pre-Vocational School (English 4-9 and African Languages 4-9) to PL2 retrospectively to 01 July 2025.

ISSUES TO BE DECIDED

3. The issues for determination are the following:
4. Whether the Respondent’s failure to promote the Applicant to the position of Departmental Head (English 4-9 and African Language 4-9), PL2, constituted an unfair labour practice.
5. If so, what relief, if any, should be granted.

BACKGROUND TO THE DISPUTE

6. Unless otherwise indicated, the following facts are common cause.
7. The Respondents are the Department of Education: Gauteng Province and the successful incumbent, Rose Mmampele Tibane. The successful incumbent’s appointment took effect on 01 July 2025.
8. The First Respondent advertised the post of Department Head: (English 4-9 and African Language 4-9) (reference TS24ED1096) for the Mamelodi East Prevocational School.
9. The Applicant and the successful incumbent were short listed and contested for the position and were both recommended for appointment. The successful incumbent was recommended as the first candidate and the Applicant was the third recommended candidate. The Applicant was the third candidates in terms of scoring and the successful incumbent the first in terms of scoring and deliberations by panel members.
10. The Second Respondent, Rose Mmampele Tibane, was appointed by the District Director because out of the three submitted and recommended candidates, she scored the highest and her interview performance was impressive, and she was experienced with correct academic credentials.
11. The Applicant alleged that the Respondent committed an unfair labour practice. The Respondent denied the allegation and sought dismissal of the dispute.

Procedural history
• The Applicant referred an unfair labour practice dispute relating to non-promotion to the ELRC in terms of section 186(2)(a) of the LRA.
• Conciliation was held, and a certificate of outcome was issued recording that the dispute remained unresolved.
• The arbitration was then scheduled for 17 September and 21 November 2025, 13 March ,17 July and 31 August 2026.
Documentary and oral evidence
• The Applicant submitted bundle A, comprising pages 1 to 56.
• The First Respondent submitted bundle R, comprising pages 1 to 78.
• The Second Respondent did not submit any documents and did not testify in support of her case.
• The Applicant testified in support of her case, Calfonia Mashavhathanga.
• The First Respondent called two witnesses, Seemole Merriam Matlala (School Principal) and Jacob Thamsanqa Xaba (Chief Education Specialist).
12. Because the Applicant was represented by his trade union representative, I adopted an adversarial approach in determining the merits of the dispute fairly. The parties were also directed to file written heads of argument, and they complied on 11 September 2026.

PRELIMINARY ISSUES

13.    There were no preliminary issues requiring determination.

SURVEY OF THE EVIDENCE

14.        What follows is a summary of the evidence relevant to the determination of the dispute. It is not intended to reproduce every aspect of the evidence presented.

THE APPLICANT’S CASE

Evidence of the Applicant
15. The Applicant, Calfonia Mashavhathanga, testified that she is employed by the Respondent as a PL1 Educator at the Mamelodi East Pre-Vocational School, started on 01 July 2020, and was now five (5) years and four (4) with the Respondent. She stated that the successful incumbent did not meet the set criteria or skills set, qualifications, and the inherent requirement of the role and described herself as a suitably qualified and experienced teacher. She holds a Bachelor of Arts (Health Science and Social Services) degree, Postgraduate Certificate in Education (Senior Phase and Further Education and Training), Bachelor of Arts Honours (in psychology), and currently pursuing Masters Degree in Psychology with UNISA. She is in possession of General Education Certificate Special School for mild intellectual disability, amongst other academic credentials. She is also registered with SACE. Despite the core responsibilities of teaching, she also provides leadership as a senior netball coach, participates in School Based Support Team (SBST), School Assessment Team (SAT) and School Management Team (SMT) amongst other responsibilities. She was assigned the responsibilities of acting as a Departmental Head for two years, to be precise from April 2023 to March 2025 (A34 to A37).
16. She applied for an advertised post of Department Head, TS24ED1096, PL2 for English 4-9 and African Languages 4-9 at Mamelodi East Pre-Vocational School. She was shortlisted, interviewed and was amongst the three (3) recommended for appointment. The successful incumbent was recommended as number one (1) and the Applicant as number three (3) in terms of the scoring and deliberations. The requirements of the role as per advert is grade 4 to 9 and she qualified for grade 9 to 12 for languages. She saw the successful incumbent qualification on Unisa website and qualified to teach foundation phase, grade 1 ,2 and 3. She also assisted the successful incumbent with her proposal for her Master Inclusive Education (MED) as well as workplace marksheets, preparations for lessons plans,seting exam papers and memos and collecting assessments for distributions, and surely there was no ways the Applicant could have perform better than her in the interview process, given her lack of depth in those basic tasks . The successful incumbent applied for the same position in term of vacancy circular 2 of 2022 and was not shortlisted for interviewed during the year 2022, and there was nothing that changed in terms of her credential, why was she shortlisted, interviewed and recommended for appointment after the 2024 advert (TS22ED1089) (A17). The whole interview process was irregular and wrongfully intended to benefit the successful incumbent.
17. During the year 2022, she was badly treated at work by the School Principal and the successful incumbent, whilst acting as a Departmental Head, to a point of raising a complaint with the Institutional Department Support Officer (IDSO) (A18). This was during her maternity leave whilst at home. The IDSO acknowledged receipts of her complaint and promised to attend to such complain (A19). Upon her return from maternity leave, a meeting was convened to address her complaint and the minutes of the meeting circulated and signed (A20 to A22). A proof that she was assisting the successful incumbent was from page A23 to A29, and the assistances ranges from time tables, preparing lessons plans, compiling marksheets, setting exams papers, learners’ books amongst others. It was agreed and suggested that the Applicant and the successful incumbent should collaborate and the minutes signed by the Deputy Principal and the Departmental Head, and this was in 2023. Amongst other initiatives, she started the drop and read programmes at school in January 2023, and her effects were not noticeable and recognised by the school management. The school started the drop and read project on third terms of 2023.
18. On 22 July 2025, the successful incumbent started bullying and attacking her in front of both other colleagues and learners. The school principal and the deputy school principal called the Applicant and the successful incumbent to a meeting and the successful incumbent apologised for her wrong conduct. She escalated the irregular conduct of the successful incumbent to the trade union, PSA, Patrick Morake, who advised the Applicant that he might be conflicted as the successful incumbent was his sister and opted to get another PSA, representative to help her raise a grievance against the offending conduct of the successful incumbent (A38 and A39).
19. The interview process and the supporting documentation are riddled with many errors and inconsistencies thar create doubt about accuracy and correctness, e.g., Mr R Netshidivhe was physically present at the interview on 20 August 2024, but the school principal pp and signed on behalf of the panel member that was present (R20). Another odd error or inconsistency was on pages R18 and R23, on R18 it was annotated that the interviews were concluded at 15H10 whilst on page R23 it was concluded on 14h00. The successful incumbent was scored 18 by the school principal on R23 and on R40 was 19. On page R64, form C, which was critical in making appointment, cited incorrect post number as TS24ED1097 instead of TS24ED1096 as per the advert on A2. On page R65, the incorrect date stipulated as 19 August 2024 instead of a correct date of 20 August 2024. On R66, the SGB and the school principal recommended the successful incumbent despite full knowledge that she does not possess the requisite qualifications. On page R68, the school SGB Chairperson did not put date next to his appended signature. The Human resources or the district office did not populate clause 4.1 of the form C on page R68, and page R69 was blank and not signed at all by the human resources management and no approval of the district director. All the above listed anomalies are clear indication that the whole interviews process, her under-scoring by the panel members, the over-scoring of the successful incumbent and populating of form C was fraudulent designed to frustrate his appointment to the PL2 Departmental Head.
20. The SGB guided by the School Principal must abide by the ELRC Collective Agreement Resolution 1 of 2021, more importantly clause 11.11 on page R50, which provides that when determining a person is suitably qualified, the interview committee must consider the persons professional qualifications, prior certificate, relevant experience, and capacity to acquire within a reasonable time and the ability to do the job. Clause 11.7 provided that no person may be included in the preference list if that person does not meet all requirements as contained in the advertisement. The Applicant testified that the successful incumbent was not qualified and the panel members failed to factor this requirement by the ELRC Collective Agreement Resolution 1 of 2021. She was deliberately underscored and prejudiced in order to favour the successful incumbent. The scoring was tampered with and the form C cannot be relied on and cannot be authenticated as official document because it was fully signed by the human resources management, the district director and mostly information populated was inconsistent.
21. There are lot of publications that branded the Tshwane South District as corrupt and mostly losing the dispute as most successful candidates are those favoured and not appointed on merits. There are ELRC arbitration awards that condemn such corrupt practices and ELRC498-23/24GP is one amongst many.
22. Due to severe jealousy and unfair favouritism, innovative ideas are not rewarded, she was the first to write school meeting minutes typing with laptop whist majority of teachers are still using hand-written minutes, and she was the first to take learners to the world medal for public speaking but was unfairly removed from the public speaking, arts and culture event. She spearheaded the Presidential Youth Programme and as and when the Youth Brigade started yielding positive results, she was removed. She was also removed from SAT merely because she was PL1 and PL2 was needed to partake on SAT. She spearheaded the Ground Duty and when positive results were showing she was removed.
23. The school management was playing the ethnic card because she was discouraged to be in the presence of Ramatsekele as both speak Vhenda language whilst the majority were Sepedi speaking. She was the first to arrive at school, always punctual, whilst most teachers are always late.

THE RESPONDENT’S CASE

24. The Respondent’s first witness was Seemolo Merriam Matlala, who testified under oath that she is employed by the Respondent as the school principal at Mamelodi East Pre-Vocational School. She started at the school in 2016. Therefore, she was ten (10) years at school as a school principal. Prior to her appointment as the school principal, she was at the Tshwane West District, in a unit called Inclusion and Special School unit.

There are no grades at Mamelodi Pre-Vocational school, but levels, as the school catered for mild intellectual capacity learners, e.g. where seventeen (17) years old might be operating on intellectual capacity of maybe 10 years or lesser. The Gauteng Department of Education human resources system on advertisement of post, GED 79 form, does not cater for the type of school and therefore, for the purposes of advertisement, grades or phases are used and not levels because there are no levels in terms of GED 79 form. The advertisement of the post, specifically provided that the category of the school is special and not ordinary school, hence on the advert the category of the school is branded as special whilst many of the adverts indicated ordinary schools. Normal schools would be categorised as foundation phase, intermediate phase and senior phase, whist special schools are level 1, level 2, Level 3, level 5 and level 5 only. That’s the end of pre-vocational schools. The learners ages are mostly 14 years to 20 years.
26. All pre-vocational schools’ learners are assessed by the psychologist to determine or identify the learning barriers and recommend the kind of support needed for the mild intellectual disability learners. The process used by the psychologist are screening, identification, assessment and support for learners and learners do not choose the school but professional psychologist determines whether learners go to normal school or special needs schools. The pre-vocational school learners are geared towards for technical occupation categories. The pre-vocational school learner’s qualification is Special School General Education Certificate.
27. The three (3) recommended candidates all possessed great academic credentials but the successful candidate was more relevant due to her degree in inclusive education (R71 and R72), and more important the successful candidate got Reading, Writing and Spelling for first and second language which was more crucial to the advertised role (R74), and she was more experienced compared to the other two candidates, and the second candidate, Mehale, was strong on life orientation and English, and the Applicant was strong with qualification in social sciences. In terms of the scoring and deliberations, the successful candidate was number one (1), Mehale number two (2) and the Applicant number three (3). The only criteria that differentiated the three candidates were experience, scores, qualifications and presentation during the interviews.
28. The work relationship at school with all Educators was socially and professionally friendly and that was inclusive of the Applicant, in actual fact, to demonstrate the respect and social friendliness, she attended the Applicant’s wedding and gave speech at the wedding in 2025. Professionally, she afforded the Applicant an opportunity to learn and provide leadership at school by recommending her to be appointed to act as Departmental Head. On a personal level she donated some clothing to the Applicant and therefore, it cannot be correct that she acted irregularly to favour the successful incumbent.
29. She recognised and awarded excellence with regards to Sports Committee and Ground duties by the Applicant, but certainly it was incorrect for the Applicant to say she participated in SAT, as it was coordinated by Mr Hlatswayo. The Applicant was teaching personal social wellbeing and doing a good work. It is incorrect for the Applicant to claim initiative of the drop and read project as that was shared in the School Principal meeting and upon her return, she introduced that to all teachers. There are no marks allocated for drop and read project and all teachers and learners participate together. It is incorrect of the Applicant to allocate mark as in A27 to A30. The intention was to encourage a culture of reading together and not to allocate marks. The drop and read project were for reading and not writing. Therefore, that was not drop and read project. The mild intellectual learners cannot be subjected marks allocations but are all encourage to drop everything and read with all teachers.
30. The successful incumbent equally was provided with acting opportunities and acted as Departmental Head more than the Applicant, and she was more experienced as she was teaching languages before joining Mamelodi East Pre-Vocational School, whist the Applicant started her career at Mamelodi East Pre-Vocational School. The Applicant and the successful incumbent are on the same qualifications levels so the Applicant is not more qualified than the successful incumbent and the successful incumbent, not more qualified than the Applicant.
31. She cannot comment on form C, because only human resources management and the district director can comment as the form was sent to the district director. On page R20, she pp and signed on behalf of the SGB member, R Netshidivhe, who went on pension and resigned from the SGB and was not at Gauteng but somewhere at Vhenda areas. He wrote a letter that the principal can pp and signed on his behalf. She conceded that there were lot of administrative errors, discrepancies in the interview packs, scoring documents and all documents related to the filling of the position, though justified some, as just administrative errors.
32. The second witness for the Respondent was Jacon Thamsanqa Xaba, who testified that he was an employee of the Respondent and he was employed as a Chief Educational Specialist in the District for ELSON schools, that is, inclusion and special school. The criteria for this type of school were SIASE, which means screening, identification, Assessment and Support and the type of school are low intellectual levels, medium intellectual levels, cerebral palsy learners’ level, physically disabled learners and high level of intellectual disabilities. The Mamelodi East Pre-Vocational School was MID, and does not have grades or phases but only level 1, level 2, level 3 and level 4.
33. Admission to this type of school requires medical and psychological assessment before inclusion and the only criteria was medical and psychological assessment. The learners are low and below intellectual average. Throughout the Gauteng Department of Education, there is no school slot to choose levels but only grades and phases, hence the GDE 79 does not make provision for levels. In order for the position to be processed only grades and phases are allowed on GDE 79. The human resources systems do not make provisions for this type of curriculum, hence only grades and phases are used in the advertisement of position with a school category inserted as special school. The MID learners operate on different levels scholastically and cognitively; therefore, only technical occupation curriculum is offered at this special school. There are few types of this special school and amongst others are Magalies at Tshwane North, Suiderberg Tshwane West, Mamelodi East Pre-Vocational School, Kwaggasrand School and Tshwane Pre-Vocational School at Atteridgeville.

ANALYSIS AND REASONS

Legal framework
29. In determining this dispute, I have considered the LRA, the ELRC dispute resolution framework, in particular ELRC Collective Agreement 3 of 2016 and Collective Agreement 1 of 2021and the relevant case law.
30. Section 186(2)(a) of the LRA provides that unfair conduct by an employer relating to the promotion of an employee constitutes an unfair labour practice. It is, however, settled law that an employee does not ordinarily have an automatic right to promotion. What an employee is generally entitled to is a fair opportunity to compete for a post. The employee alleging unfairness bears the onus of proving, on a balance of probabilities, that the employer acted unfairly. The ELRC Collective Agreement 3 of 2026, clause F 31 equally provides that the Applicant bears the onus to prove unfair labour practice on balance of probabilities.
31. Section 23 of the Constitution and section 185 of the LRA recognise the right to fair labour practices. At the same time, the authorities make clear that adjudicators should be slow to interfere with an employer’s managerial prerogative in promotion and appointment decisions unless the decision was arbitrary, capricious, taken in bad faith, based on irrelevant or improper considerations, or otherwise unfair.
33. Section 138(7) of the LRA requires a commissioner to issue an award with brief reasons. For that reason, I refer only to the evidence and arguments most material to the outcome, although I have considered the record and the parties’ written heads of argument filed on 11 September 2026 in full.

Evaluation of the evidence

34. A central issue in this matter was whether the Applicant was the most competent, suitably qualified and meeting the inherent requirements of the post. The Applicant’s version was that she is the most qualified and met all inherent requirement of the role and should be appointed as PL2 Departmental Head. Her argument in the main is premise of the advertisement of the post on page A2, and believing that the successful incumbent does not have requisite qualifications in terms on grade 4 to 9, but the successful incumbent only qualified for grade 1 to 3, foundation phase. It is also not in dispute that the Applicant qualification for teaching is for senior phase, grade 6 to 9 and FET grade 10 to 12 and not specifically grade 4 to 9. The advertisement of the post clearly stipulated it was for a special school and at special school, levels are used and not grade and phases. In actual fact the Applicant herself supported this version on 21 November 2025, when she testified that the outcome of the school was General Education Certificates for Special School and again on minutes of meeting held on 10 January 2023, page A21, paragraph 4, refers to levels and not grade and phases, and that was before the current dispute arose. Therefore, the evidence of the school principal and the chief Education Specialist is more credible and probable than that of the Applicant.
35. Credible evidence was adduced, supported by documentary evidence (R71 to R74) that the successful incumbent is qualified with Batchelor degree in Inclusive Education and her language teaching experience, more particular languages and Reading, Writing and Spelling are more appropriate for the role. It is not in dispute that the Applicant and the successful incumbent are in possession of great academic credentials and both are studying at Masters levels. Therefore, the Applicant’s assertions that the successful incumbent does not have requisite qualification cannot be supported by any shred of evidence and facts.
36. Granted, in terms of experience, qualifications, and scoring and deliberations, the successful incumbent was correctly appointed. There seems to be paralysing tensions at school between the Applicant and the successful incumbent. It must be stated that the administrative errors by the human resources management and the district on form C alone, are shameful, embarrassing and are creating lot of unnecessary tension in the system, hence the audacity to refer to the district offices as the most corrupt, whether correctly and incorrectly, the form C submitted as proof does not inspire confidence at all and that feeds into the narrative of altered or fraudulent documents.
37. In the case of Sun International Management (Pty) Ltd v CCMA & Others (JR939/14) LC, the Court held that it is important to note that in these types of cases, it is also incumbent on an Applicant to show a causal connection between the unfairness complained of and the prejudice suffered. See National Commissioner of the SA Police Service V Safety & Security Sectoral Bargaining Council & others. Consequently, it is not sufficient just to show that there was a breach of protocol or procedures in the recruitment process. It is necessary also for the Applicant to show that the breach of the procedure unfairly prejudiced him. Accordingly, the question is whether, but for the Respondent’s conduct, the Applicant would have been appointed.
38. In Cullen v Distell (Pty) Ltd (2001) 8 BALR 834 (CCMA) the Court held that: – “In drafting item 2(1) (b) of Schedule 7, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. A Commissioner’s function is not to ensure that Respondent choose the best of most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates. The commissioner’s decision is whether the employer came to that decision in a fair manner. The employer’s decision must be procedurally and substantively fair. However, employees may have a valid complaint if they can show that they have been overlooked for promotion where they possess objective attributes, such as experience or qualifications, which the person who has been promoted does not possess, and their employers cannot explain why they were overlooked”.
39. When deciding what constitutes unfair conduct in the context of promotions, the issue of management prerogative remains of critical importance. In Provincial Administration Western Cape (Department of Health and Social Services) v Bikwani and Others, it was held as follows: ‘There is considerable judicial authority supporting the principle that Courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process’.
40. The authorities cited in argument are relevant in this regard. It is not enough for an applicant in a promotion dispute to point to procedural imperfections. The applicant must also show a causal link between the unfairness alleged and the prejudice suffered. In other words, the evidence must demonstrate that, but for the impugned conduct, the applicant would have been appointed. On the evidence before me, that threshold was not met.
41. The evidence ultimately supports the conclusion that the successful incumbent appointment was more appropriate than the Applicant.

Conclusion

42. Having considered the evidence as a whole, the arguments advanced, and the applicable legal principles, I find that the Applicant failed to discharge the onus of proving on a balance of probabilities that the Respondent committed an unfair labour practice relating to promotion.

AWARD

43. In the premises, I make the following award:

The Applicant’s non-promotion does not constitute an unfair labour practice by the Department of Education.
44. The matter is dismissed.
45. There is no order as to costs.