IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC811-25/26GP

In the matter between

LIHLE NENE Applicant

And

EDUCATION DEPARTMENT OF GAUTENG 1st Respondent

NOKO MELLO 2nd Respondent

DETAILS OF THE HEARING AND REPRESENTATION

[1] This is an award in the arbitration between Lihle Nene, the Applicant (also, Nene), and Education Department of Gauteng, the first Respondent, and Mr Noko Mello, the Second Respondent, (also, Mello).
[2] The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iv) of the Labour Relations Act, 1995 as amended (“the Act”) and this award is issued in terms of section 138 (7) of the Act.
[3] The arbitration hearing took place on 26 January 2026, at Gauteng East District Office in Norwood, 20 May 2026, 19-20 July 2026, and on 7 September 2026, at the Department of Gauteng Office, 17 Simmonds Street Johannesburg.
[4] The Applicant was present and represented by Mr T Mofokeng (Mofokeng), his SADTU union representative.
[5] The First Respondent was represented by Ms Amelia Ngwenya, its Labour Relations Officer, in the first sitting, who was replaced by Ms P Mokheseng, Labour Relations Officer, from 20 May 2026.
[6] The Second Respondent was present and aligned his case with the First Respondent’s case.
[7] Parties agreed to file written closing arguments by the 14 September 2026, same received were considered in the analysis.
[8] The proceedings were digitally recorded.

BACKGROUND TO THE DISPUTE

[9] The Applicant referred an unfair labour practice related to promotion/appointment dispute to the ELRC.
[10] It is common cause that the Applicant was employed by the Respondent at Alexander High School as a Post Level 1, Arts Educator, earning R367 263.00 per annum.
[11] The Applicant applied and was shortlisted and interviewed for the advertised Alexander High School Arts Department Head (HOD) Creative Arts post JE25ED1020, Post Level 2, for R435 240 per annum.
[12] At the onset of the arbitration the parties clarified that the issue in dispute was whether there was tampering with the scores which led to non-appointment of the Applicant.
[13] The Applicant claimed that there was tampering with the scores submitted to the district office because the Second Respondent was made No. 1 and himself No. 2, contrary to the order which he was informed by the observer unions that he was No 1.
[14] According to the First Respondent there was no tampering with scores and there was no deviation from the ranking order submitted by the panel by appointing the Second Respondent.
[15] The Applicant sought to be appointed on the post and compensation.

ISSUE TO BE DECIDED

[16] I am called upon to determine whether the first Respondent committed an unfair labour practice related to promotion and appointment related to tampering with the scores against the Applicant.
[17] If I find that the first Respondent committed an unfair labour practice related to promotion and appointment against the Applicant, I must determine the appropriate relief, otherwise the referral will be dismissed.

SURVEY OF THE EVIDENCE AND ARGUMENT

[18] Six (6) witnesses were called and a bundle of documents marked A (pages 1-53) for the Applicant’s case. A 53 was added later in the process by parties’ agreement subsequent to the Applicant’s representative perusal of the interview file he had applied for subpoena for, which parties subsequently confirmed to have been availed for perusal.
[19] On behalf of the First Respondent four (4) witnesses were called and a bundle of documents marked R (pages 1-35) and R2(page 1-16). Bundle R pages 29-35 were added following an opposed application by the initial First Respondent’s representative during the first sitting. I granted the addition after considering relevance and prejudice on both parties. Bundle R2 pages (page 1-16) was added by agreement of the parties and of interest for the matter.

Below is the summary of the pertinent and salient points on the evidence led.

APPLICANT’S CASE

[20] The witnesses called were, the First Witness, Mr Lihle Nene (the Applicant); The Second Witness, Ms Selebaleng Kolwane (Kolwane), who testified that she was an SGB member, parent component; panellist;
The Third Witness, Mr Joseph Nkosi (J. Nkosi), who testified that he was the SGB Chairperson and panellist during the 26 June 2025 HOD post interviews;
The Fourth Witness – Mr Kagiso Nkosi (K Nkosi), who testified that he was the NATU observer in the interviews;
The Fifth Witness, Mr Nkosinathi Msweli (Msweli), who testified that he represented SADTU as an observer in the interviews; and
The Sixth Witness, Mr Kwenzakwenkosi Miya (Miya), who testified that he was the Secretary of the SGB and not a panellist but part of the seating which selected the interview panel.
[21] The Applicant testified that he had the highest interview score and relied on the notes of the union observers in the interviews which showed that his score was 243, Mello was 242 and Mathey 150.
[22] The Respondent’s minutes record which stated that the panel final interview scores were Mello 242, Nene 234, Msipha 176, and Mathye 150, showed that there was tampering with the scores.
[23] Mr K Nkosi and Mr N Msweli, union observers, testified that the interview scores, which the Applicant relied on, were their record of the final scores announced during the interviews.
[24] Mr K Nkosi testified that the final interview scores in the Respondent’s minutes were incorrect, someone changed the scores.
[25] During cross – examination he testified that he gave a verbal report to the union, not the notes the Applicant relied on. Also, that NATU did not lodge a grievance for the HOD post because everything seemed fine.
[26] Mr K Nkosi also testified that there was no requirement that minutes must be signed, if that was a requirement and that minutes must be stamped then the ratification minutes which were not signed should not have been accepted.
[27] Mr Msweli testified that there was injustice and abuse of power as they were not called when the scores were changed; and that they were not made to sign the raw minutes.
[28] During cross examination Mr Msweli, however, testified that he did not sign the minutes of the interview because he did not suspect anything would go wrong and he did not follow up on signing.
[29] Ms Kolwane testified that in the final interview scores Nene was first, Mello second and Mathye third.
[30] She did not know where candidate Msipha’s score came from and did not remember if he had submitted an apology. However, she acknowledged it was her handwriting on the score sheet and said that it showed she had scored Msipha 34. She also said it was also possible she had returned a signed scoresheet as they completed the same before the interviews.
[31] Mr J Nkosi testified that he did not remember well whether Mello led by 242 followed by Nene, but he remembered that after the panel deliberation their recommendation was that Nene was first.
[32] During cross -examination the Applicant testified that his total interview score according to the Respondent’s minutes was 234 but 224 considering there is a question he was scored 50 instead of 40.
[33] The Applicant testified that he did not dispute Mello’s score was 242, but he disputed his own scores, because they did not correspond with the scores documented in the union observers’ notes.
[34] He also testified that the observers were in the process according to the Collective Agreement No 1 of 2021, their notes were reliable.
[35] During cross -examination Mr K Nkosi testified that NATU did not lodge a grievance for the HOD post because everything seemed fine.
[36] Mr Msweli testified that it was observer role to alert the chairperson of anything suspicious. However, never lodged a grievance because everything went well.
[37] During cross examination Mr Msweli testified that there was no need for them to attend the ratification.
[38] Ms Kolwane, Mr Miya and Mr J Nkosi testified that they were aware that the ratification meeting was deferred to the following day because the interviews process ended late.
[39] The principal sent the invitation in the morning on the following day after the interviews, but they could not attend.
[40] Mr Joseph Nkosi testified that he sent an apology for the ratification meeting on the next day and said that the committee could proceed. During cross-examination he testified that the principal gave him feedback of the ratification meeting.
[41] Mr Miya testified that only five (5) SGB members attended ratification out of 11 members, meaning there was no quorum, the process was null and void. Only one (1) SGB member who was not part of the interview panel was present. He could not attend the meeting but not based on the reason stated that he had attended a Sadtu meeting.
[42] During cross examination Mr Miya testified that as a secretary of the SGB he normally issued the ratification meeting notice to SGB, based on instructions from the interview panel, which had its own secretary. He did not know who deferred the meeting to the following day.

FIRST RESPONDENT’S CASE

[43] The First Witness, Mr Yonela Bekizulu (Bekizulu) testified that he was a teacher representative in the SGB, and he was a scriber during the interviews.
[44] The Second Witness, Mr Isaac Malatsi (Malatsi) testified that he was the SGB, parent component, SGB Treasurer, and he was the chairperson of the interview panel.
[45] The Third Witness, Mr Phillemon Mashishi (Mashishi) testified that he was the Respondent’s IDSO for District 2.
[46] The Fourth Witness, Ms Aalimah Mbewe (Mbewe) testified that she was an SGB parent member and a panellist in the interviews.
[47] In summary, Mr Yonela Bekizulu, Mr Isaac Malatsi and Ms Aalimah Mbewe testified that the selection criteria applied was scores and deliberation.
[48] Mello was the highest in terms of the interview scores, based on the final total of the six (6) panel members’ scoresheets. The scores order was, Mello 242, Nene 234, Msipha 176 and Mathye 150.
[49] Mr Bekizulu testified that the two unions observers were present and verified the figures.
[50] The witnesses testified that during deliberation the panel took a decision for recommendation based on the interview scores as they were, ranked on the highest marks.
[51] Mr Malatsi and Ms Mbewe testified that the decision was taken based on Malatsi’s leading, due to disagreement, interference and interruption of the panel’s deliberation process by the unions.
[52] Mr Bekizulu testified that the deliberation outcome, which Mr Malatsi testified not much could occur, was that the panel agreed on the order of priority based on the final scores and interviews summary.
[53] The panel deliberation agreement was to take the order of priority based on the final scores and interviews summary.
[54] The recommendation was that Mello was first, Nene second and Msipha third. The minutes, which the other panellists refused to sign were a complete record.
[55] Ms Mbewe and Mr Malatsi also testified that Mello was first in terms of the scores and recommendation at the end of the day of the interviews.
[56] According to Mr Malatsi the unions refused to participate further and to sign the minutes.
[57] Mr Malatsi and Mr Bekizulu testified that the interviews ended late, on the next day Mr Malatsi invited everybody to the ratification meeting.
[58] Mr Malatsi testified that all the members read the message, the ratification meeting continued with the members who attended because others gave apologies and only one did not. Also, the SGB chairperson Mr J Nkosi sent an apology and said the message could proceed in his absence.
[59] Mr Bekizulu and Ms Mbewe testified that they attended the ratification meeting on the following day, and the members present agreed with the recommendation from the interviews and no changes were made. There were raw minutes and typed minutes for interviews and deliberations. The Chairperson of SGB signed the Form C stating recommendation and accompanied by the Principal Chauke and Malatji the chairperson of the panel.
[60] Mr Malatsi testified that he verified and signed that the raw scores were in line with the scores in the recommendation to the district office, which were also verified by the scriber and chairperson of the SGB and the Principal.
[61] It was not possible anything could have gone amiss between interviews and ratification because at the end of the day they left the file in the principal’s office and also the scoresheets were signed by the panel.
[62] Thereafter, they processed and submitted the appointment recommendation to the district office.
[63] Mr Mashishi testified that he was the Respondent’s IDSO district 2, the three candidates’ recommendation of the SGB based on the interviews and the ratification in the file from the school was not changed by the Human Resources office of the Acting District Director.
[64] If there were any changes they would have been communicated. The file contained a checklist, and the written and typed minutes were checked and they were satisfied with it.
[65] During cross – examination Mr Bekizulu testified that it was agreed in the panel selection process that the principal would be the interview panel member and score candidates. He did not know if he was a resource person.
[66] His minutes were taken in the meeting using the guidelines for writing minutes and he had written the answers of the candidates separately and recorded interview summary and the deliberations of the panel and its conclusion.
[67] He requested the people who refused to sign to initial the interview minutes thinking that would suffice.
[68] The ratification minutes were signed by him and the chairperson, other members who attended initialled, based on the principal’s advice.
[69] Of the 11 SGB members five (5) were present in the ratification meeting. He understood there must be parents’ majority for quorum.
[70] Mr J Nkosi, SGB Chairperson would have signed the file with the omitted signatures on the raw minutes due to lack of understanding.
[71] He also went to the district to submit the file to be submitted the district by the principal and panel chairperson
[72] During cross – examination Mr Malatsi testified that they had three (3) SGB parents present and a teacher, they had quorum in terms of the SASA requirements for that SGB meeting.
[73] When Mr J Nkosi and Ms Kolwane left the meeting early the Applicant was not ranked the highest and there was no grievance lodged.
[74] Mr J Nkosi, voluntarily signed the recommendation submitted to the department and he was a seasoned SGB chairperson familiar with the process.
[75] The observers, which he did not dispute were an active part of the process, had verified the scores recorded by the scriber and they wanted them to be changed.
[76] To initial on raw minutes and ratification minutes was norm and alike to signing. The scriber and panel chairperson signed and others initialled.
[77] During cross – examination Mr Mashishi testified that he could not comment on the union observers notes, but on documents that were officially submitted to the department.
[78] He did not know about summarised minutes, but the accepted submitted minutes which were signed by the panellists, with acknowledgement of omission in checking if all the panellists signed according to the file index. Ratification as SGB meeting in terms of SASA required a quorum.
[79] Action would be taken if the Scriber submitted the file without delegated powers.
[80] The department trusted the leadership of the school and no tampering was reported to district office.
[81] During cross – examination Ms Mbewe testified that she remembered the three (3) candidates who impressed her. The panel agreed on the final interview score presented by scriber. The ratification meeting would have proceeded depending on whether apologies were received from the other members.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[82] Section 186(2)(a) of the LRA stipulates that unfair labour practice means any unfair act or omission that arises between an employer and an employee involving 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 provision of benefits to an employee.
[83] This is a dispute relating to promotion. The Applicant had to demonstrate through evidence and argument that the first Respondent’s conduct in not appointing him to the HOD Creative Arts position was unfair.
[84] It was not disputed that the HOD PL 2 post that the Applicant had applied for was a higher rank that carried greater status, responsibility, and authority. Meaning that the dispute is a promotion dispute envisaged in section 186(2)(a) of the LRA.
[85] It was common cause that the Applicant applied and was shortlisted and interviewed for the post.
[86] Indisputably the scriber and the union observers were legitimately part of the interview process but did not score and six (6) panellists scored the interview candidates.
[87] To discharge the onus, on behalf of the Applicant, documentary evidence, the observers’ notes, were relied on to show that the Applicant’s final interview score was 243, Mello 242 and Mathye 150. As well as the witness testimony of the Sadtu and Natu union officials and the panellists.
[88] Mr J Nkosi testified that he could not remember the scores, the number of candidates shortlisted and interviewed but remembered that Nene was recommended after deliberation.
[89] The Applicant’s tampering with the scores claim was premised on the Respondent’s minutes of interview final scores with Mello 242, Nene 234, Msipha 176, and Mathye 150.
[90] While the Applicant’s witnesses including Ms Kolwane testified that three (3) candidates were interviewed and scored in the order stated on the union observers’ notes, Ms Kolwane confirmed that she had signed the marked score sheet of the fourth interview candidate, Msipha, and also confirmed it was her in her handwriting which showed that she scored him. Hence, making it difficult to go with the Applicant’s representative assertion that Msipha was a ghost candidate.
[91] It was indisputable that a long time had elapsed since the interviews in June 2025, making it likely not to remember some details, e.g. dates, times, and the faces of candidates interviewed.
[92] However, Ms Kolwane and Mr J Nkosi’s showed lack of full recollection of material details relating to the process, which raised concerns regarding the reliability of their testimony.
[93] The Applicant’s witnesses testified that scores and deliberation criteria was used. They disputed the employer records on recommendation of Mello and being the highest on the scores.
[94] Their testimony that Nene was recommended during deliberation based on the decision taken to proceed on the scores was not corroborated with any documentary evidence.
[95] Paradoxically, it was not disputed that the Applicant’s witness, Mr J Nkosi, had verified and signed the recommendation file submitted to the department.
[96] The Applicant’s witnesses’ testimony was therefore inconsistent because the evidence led which showed that the recommendation of Mr J Nkosi was that Mello was the highest ranked in scores and for appointment.
[97] The Principal was not called to testify about the recommendation of Nene that Mr J Nkosi testified he asked the Principal about why it was changed when he told him about Mello’s appointment.
[98] The Applicant’s testimony that his interview score was 234 instead of 224, because he was marked 50 instead of 40 on one question was noted. However, both scores were not amounting to the 243 recorded by union observers which he relied on for the claim and not the highest score.
[99] All the Applicant’s witnesses testified that they did not attend the ratification meeting and therefore gave no first-hand testimony of what transpired in the ratification meeting. Mr Miya’s testimony that his apology for not attending the ratification was not due to Sadtu commitment as the scriber recorded was noted. The scriber testified that he had recorded the same based on his request as they were both SGB teacher component to stand in for him due to attending Sadtu commitments. However, not much turned on that.
[100] Also, none lodged a grievance following the completion of the process, but both unions observers testified that all went well.
[101] On rebuttal, the First Respondent’s witnesses’ testimony that Nene was second in terms of scores and recommendation preceded by Mello, was supported with the signed scoresheets of the panellists, and the documented record of interview minutes and recommendation confirmed in the ratification minutes.
[102] The evidence led regarding not signing of the minutes by all the people who were supposed to sign was acknowledged by the First Respondent’s Third Witness, whose testimony only carried weight based on his position, on account of the department’s handling of the submitted recommendation file.
[103] He testified that the verification of all signatories was not detected when the file was submitted.
[104] However, the appointment of Mello was based on the submission that was filed with all the required documentation verified, with reference to the record of documents presented.
[105] Another anomaly pointed out on behalf of the Applicant’s case was the scriber involvement in the movement of the file to the district office, which the First Respondent’s Third Witness testified action would be taken for if found to be the case.
[106] At most these showed procedural/administrative anomalies, but no evidence compelling enough for drawing a negative inference pertaining to the issue in dispute.
[107] Neither could a negative inference be drawn pertaining to the issue in dispute in terms of the ratification meeting challenge raised, and Mr Miya’s testimony because there was no evidence of the scores or the different recommendation tampered with, to the one ratified.
[108] The testimony that ratification was supposed to proceed on the same day after the interview, but due to late completion did not take place was not disputed and corroborated by the Applicant’s witnesses. Also, that the invitation to attend same on the following day was issued by the principal.
[109] The First Respondent’s Second Witness’s testimony that between interviews and ratification the files were in the principal’s office and also the scoresheets were signed by the panel, hence nothing could have gone wrong was undisputed.
[110] In the main, the First Respondent’s witnesses were consistent and showed no major contradictions. They corroborated each other’s testimony, which raised no concerns about the reliability of their testimony.
[111] On a conspectus of the evidence led, I could not find that it pointed to changing or tampering the interview scores of the Applicant, both on a narrow and broader view of “tampering” meaning.
[112] I could not find that the Applicant discharged the onus to prove, on a balance of probabilities, the claimed tampering with the scores.
[113] Therefore, I found no good cause was shown, to interfere with the managerial prerogative in this case in terms of the employment selection and appointment process.
[114] It was not proven, on a balance of probabilities, that there was unfair conduct relating to the appointment of the Second Respondent for the post by the First Respondent.
[115] Therefore, the Applicant did not discharge the onus to prove that he was subjected to unfair labour practice related to promotion as contemplated in terms of s186 (2) (a) of the LRA.

I therefore make the following award:

AWARD

[116] The first Respondent, Department of Education Gauteng, did not commit an unfair labour practice relating to promotion as contemplated in terms of section 186 (2) (a) of the LRA, by not appointing the Applicant, Lihle Nene, to the position of Department Head at Alexander High School.
[117] The referral is dismissed.

Thus, done and signed at Johannesburg on 30 September 2026.

ELRC PANELLIST
LUSANDA MYOLI