01 October 2026 – ELRC914-25/26MP

Panellist: Asnath Sedibane
Case No: ELRC914-25/26MP
Date of Award: 01 October 2026

In the ARBITRATION between:

Nqandolo Sophie Sibongile

Union / Applicant)

Education Department of Mpumalanga

(1st Respondent)

Tebogo Mokone

(2nd Respondent)

Union/Applicant’s representative: Mr Wiseman Sibiya
Union/Applicant’s address:
1st Respondent’s representative: Ms Frieda Rieger
1st Respondent’s address:

2nd Respondent’s representative: In Person

2nd Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing between Sophie Sibongille Nqandolo (the Applicant) and Education Department of Mpumalanga (the First Respondent) and Tebogo Mokone (the Second Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), on 16 January 2026, 17 April 2026, 09 June 2026, 23 July 2026 and lastly on 14 September 2026. The matter was held physically on the first two dates, and it proceeded virtually on subsequent dates. The matter was set down for arbitration in terms of section 186(2) (a) of the Labour Relations Act 66 of 1996 (“LRA’’).
The Applicant was present throughout the arbitration and was initially represented by different representatives from Nkosi Moloi Attorneys. When the arbitration proceeded on 09 June 2026, the Applicant was represented by Mr Wiseman Sibiya from Nkuna and Phala Attorneys. The First Respondent was represented by Ms Frieda Rieger from the Employee Relations Unit of the First Respondent. The Second Respondent, Mr Tebogo Mokone attended the process in person and only observed the process.
Mr Skhumbuzo Luthuli assisted with interpretation from Zulu to English and vice versa.
The parties submitted bundles of documents which were used in the arbitration process. At the conclusion of the leading of oral evidence, it was agreed between the parties and the Panellist, that the parties would submit closing arguments in writing, by no later than the 21st of September 2026. I have received the closing arguments from the First Respondent and the Applicant, and I have taken these into consideration when making this award. The Second Respondent did not submit any closing arguments.
ISSUES TO BE DECIDED
I was required to determine whether the First Respondent committed an unfair labour practice relating to promotion against the Applicant, by not shortlisting her for the position of Principal at LD Moetanalo Secondary School.
The relief sought by the Applicant initially was that the appointment of the Second Respondent be set aside, the shortlisting process be redone and that she be compensated for the unfair labour practice. The relief sought was later amended in the applicant’s closing arguments
After the narrowing down of issues, it was agreed that the following issues were common cause between the parties:

7.1 The Applicant was appointed by the First Respondent as an educator on 06 February 2006. She is currently a Departmental Head at LD Moetanalo Secondary School, earning a basic monthly salary in the amount of R43, 134-28.
7.2 The position that the Applicant is disputing is that of PL4 Principal at LD Moetanalo Secondary School, which was advertised with reference number: 62104-2650.
7.3 The Applicant was not shortlisted for the position.
7.4 The 2nd Respondent, Mr Tebogo Mokone was appointed in the position.
7.5 The Applicant declared a dispute regarding alleged unfair labour practice.
8. The parties agreed that the following were the issues in dispute:
8.1 Whether the First Respondent’s failure to shortlist the Applicant for the post of Principal constitutes unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995.
8.2 Whether the shortlisting criteria i.e. that the candidates must hold a PL3 post (Deputy Principal) is inconsistent or in conflict with the illegibility criteria that was in the advertisement of the position.
8.3 Whether the shortlisting criteria recorded in the minutes used in the interview of the PL4 was consistently applied.
8.4 Whether the shortlisting of a candidate with primary school experience while excluding the Applicant when she holds experience and qualifications was fair. The First Respondent does not dispute the criteria said to govern the process and what weight is to be attached to such comparator evidence.
8.5 Whether it was fair to pick job applicants without having a written list of rules first, especially for a senior PL4 job that needs a fair and clear choice.
8.6 Whether the applicant was not unfairly denied the opportunity to compete for the post and what relief in terms of section 193 read with section 195 of the LRA is appropriate should unfairness be found.
8.7 Whether the Applicant suffered any unfair labour practice relating to promotion.

BACKGROUND TO THE DISPUTE
9. The Applicant, Ms Sophie Sibongile Nqandolo is a Departmental Head, PL2 at LD Moetanalo Secondary School. She applied for the post of Principal that became vacant at the school. She was interviewed for the position which was later readvertised. She was not shortlisted when the position was readvertised.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE
The Applicant, Ms Sophie Sibongile Nqandolo testified under oath briefly as follows:
10. She is a Departmental Head for English at LD Moetanalo Secondary School for eight years. The post is at PL2. She holds a Senior Certificate in Higher Education, a four-year degree and an Honours in Management which is at RQEV 16. She applied for the Principal’s post which required seven years’ experience and RQEV 13 qualification. She was initially shortlisted for the post and in the interview, she found that her presentation which she had put on a USB stick was not there. She requested that she be allowed to retrieve the presentation from the laptop, she was not allowed to do so. She was advised to lodge a grievance, which she did. Whilst waiting for the grievance outcome, she learned that the position had been readvertised. Her grievance was never resolved.
11. She was not shortlisted when the post was re-advertised and she had applied. According to a letter written to her, she did not meet the requirements of the post. She holds an RQEV 16 qualification, but it was recorded on the shortlisting minutes that her RQEV is 15. She discovered that some candidates who were on PL1 were shortlisted, whilst she is on PL2 but was not shortlisted. She was unfairly disadvantaged by the First Respondent. She seeks compensation for the unfair labour practice and for her not to be prejudiced in any other process for promotional posts.
12. Under cross-examination, the Applicant confirmed that the post for which she had declared the dispute is the Principal’s post with reference number 62104-2650. She confirmed that she applied for the post and was longlisted but not shortlisted. She disputed that the dispute was limited to the post under the reference number 62104-2650. She contended that the dispute included the post under the previous reference numbers. She disputed that she had participated in the investigation that was conducted following her grievance. She contended that the official investigating the grievance had only come to the school to confirm that she was the one who had lodged the grievance. She confirmed that the investigation recommendation was for the short-listing process to be redone. She confirmed that she was not promised that she would be automatically shortlisted. She could not confirm that the shortlisting was redone on 03 October 2025, she could only note the minutes.

The Applicant confirmed that she was not a panel member in the shortlisting process and could therefore not give a first-hand account of what transpired in the process. She however said that she had a recording from the process which was given to her by one of the panel members. She could not dispute that according to the score sheet of the shortlisting process, she was candidate number 5, her application was considered and she was scored an overall score of 11. She did not dispute that PL2 candidates were shortlisted. She reiterated that she was disadvantaged as she was a PL2 and that her REQV was misrepresented as 15 instead of 16. She insisted that the shortlisting criteria were designed to specifically exclude her because she had lodged a grievance. She confirmed that the persal printout confirms her REQV qualification as 15, she contended that this was incorrect. She contended that the other post she applied for at a different school and with a different reference number was relevant to the dispute.
THE FIRST RESPONDENT`S CASE
The First Respondent’s witness, Ms Julia Smangele Motsepe, Circuit Manager: Steve Tshwete, Nkangala District, testified under oath briefly as follows:
14. In October 2025 she was the Acting Circuit Manager. She knows the Applicant from the long list of the post of Principal at LD Moetanalo Secondary School. The Applicant was not shortlisted for the position, and she lodged a grievance after the initial shortlisting where the panel had agreed to shortlist only applicants on PL3, and the applicant was not shortlisted as she was on PL2. After an investigation was done, the District Director instructed that the shortlisting process be redone and gave Ms Motsepe a timeline for doing that. The instruction was further that the applicant is not given preferential treatment but be treated in the same way as other candidates. A fresh shortlisting process was done on 03 October 2025. New criteria looked at management experience, post level and qualifications and that the acting Principal be automatically shortlisted.
15. In terms of the criteria, 3 to 10 years’ management experience was scored 3; 11 years plus management experience was scored 5; PL1and PL2 were scored 3; PL3 and PL4 were scored 5; Primary School experience was scored 1; Secondary School experience was scored 2; Management qualifications were scored 1 for certificate, 2 for diploma, 3 for degree and 4 for Masters. The Applicant’s total score was 11 and she was not shortlisted. The Applicant was treated in the same way as the other candidates. Only the candidates that were scored in the top five were shortlisted.
16. Under cross-examination, Ms Motsepe confirmed that the Applicant was shortlisted for the post previously advertised with a different reference number. She did not dispute that the Applicant was not allowed to retrieve her presentation from her laptop during the interview process. She confirmed that that process was nullified and the post was readvertised. She did not know if the Applicant’s grievance had been resolved at the time the process was nullified as the grievance had been escalated to the District. She did not know if the Applicant’s grievance was considered when the decision to readvertise the post was taken. Nine applications were received for the post with reference number 62104-2650. She disputed that only PL3 candidates were considered in the process of the second shortlisting. The Applicant was scored 3 for management experience as she had between 3 and 10 years’ management experience. She disputed that the shortlisting criteria went against the Gazette where the post was advertised.

Closing arguments
17. In closing, the Applicant submitted that she applied for the Principal’s post Ref: 62104-1099 at LD Moetanalo Secondary School. During the process, Ms Motsepe called the Applicant twice pretending to be calling another candidate. During the interview process, the Applicant’s USB which had her PowerPoint presentation was swapped with an empty USB by the SADTU Representative. The Applicant then lodged a dispute on 12 July 2024. The Respondent’s witness Ms Motsepe was not a credible witness, and she collapsed on three questions that she was asked during cross-examination. Ms Mostsepe failed to explain why the posts Ref: 62084-1931 and 62104-2650 were re-advertised whilst the Applicant’s dispute of 12 July 2024 was still pending. She failed to explain why the post was re-advertised without an erratum having been issued as per the ELRC Collective Agreement. While PL2 with seven years’ experience are illegible to apply for P4 Principal post, the First Respondent investigation recommended that the process be nullified for unfair discrimination criteria. No minutes of the investigation that dismissed the Applicant’s grievance were produced by the First Respondent.

18. Documentary evidence shows that the criteria for shortlisting were applied selectively to exclude the Applicant because she lodged a dispute. The Applicant has been victimised since lodging the dispute. PAM Chapter B paragraph 2 .1 requires seven years’ teaching experience for a PL4 Principal post, and not necessarily a PL3. The Applicant met the criteria. Re-advertising a post while a dispute is pending at the Bargaining Council is unfair labour practice. The Applicant seeks retrospective appointment to the PL4 Principal’s post at LD Moetanalo Secondary School with full backpay from November 2023 when the post was filled. The Applicant further seeks an order that the First Respondent removes the blacklisting/ blocking and stop victimizing the Applicant for lodging a dispute.

19. In closing, the First Respondent submitted that there was no unfair labour practice relating to promotion committed against the Applicant in this matter. The two shortlisting processes for the post with reference 62104-2650 were distinguishable. The first shortlisting process was nullified after an investigation following allegations of non-compliance, and the second process was fair with the Applicant having been considered and not shortlisted due to her not having met the criteria set in the process. The First Respondent did not contend that the Applicant did not meet the seven years’ experience requirement nor that she was excluded from shortlisting due to her being on PL2. To the contrary, the evidence shows that the Applicant was considered and scored in accordance with the criteria, resulting in her total score being 11. Contrary to the Applicant’s contention, Mr Thobejane who had Primary School experience was not shortlisted for the post.

20. The PERSAL entry showing the Applicant’s RQV as 15 and not 16 has no causal connection to the exclusion from the fresh shortlisting process. The Applicant was not unfairly excluded, her application was considered and scored in accordance with the criteria and her score of 11 resulted in her being excluded from the list of shortlisted candidates. The Applicant has not established that the fresh shortlisting process was conducted outside the applicable framework in a manner that deprived her of a fair opportunity to compete. The Applicant failed to prove that she was not promoted due to an unfair process by the First Respondent.

ANALYSIS OF EVIDENCE AND ARGUMENTS

I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
The Applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the
Labour Relations Act 66 of 1995, which provides as follows:

186 Meaning of dismissal and unfair labour practice

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
employee involving-
(a) 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;

23. The Applicant has contended that the First Respondent committed an unfair labour practice relating to promotion when by excluding her from the shortlist of candidates for the position when she had initially been shortlisted and interviewed for the position. It was common cause between the parties that the post was previously advertised under a different reference number, the Applicant was shortlisted and interviewed and that the post was later re-advertised with reference number 62104-2650. It was also common cause that the first shortlisting process under this reference number was nullified, following a grievance by the Applicant. A second short-listing process on 03 October 2025 resulted in the Applicant not being shortlisted and with five candidates being shortlisted and with the Second Respondent, Mr Mokone being appointed in the post following an interview process.

24. The Applicant testified as the only witness in her case and stated that she applied for the post of Principal at LD Moetanalo Secondary School, which is at PL4. She gave a background of the dispute and testified that the initial advertisement of the post was with reference number 62104-1099. She contended that the First Respondent had re-advertised the post without an erratum having been issued as required by the ELRC Collective Agreement. The Applicant further contended that the First Respondent re-advertised the post whilst she had an active dispute.

25. It should be noted that the Applicant’s dispute which was referred to the council in November 2025 did not state the post reference number but provided the date of the dispute as 13 October 2025. In summary of the dispute, the Applicant submits that “ I was not shortlisted for the position of principal vacancy while I meet all the requirements.” It is therefore clear that the Applicant’s dispute was premised on her not being shortlisted after the 03 October 2025 shortlisting process, and not on the initial post having been re-advertised nor on the first shortlisting process having been nullified. The Applicant’s contention therefore that her dispute relates to three processes, the one where she was shortlisted and interviewed, the one where she was not shortlisted and the process was nullified and the one where a fresh shortlisting process was embarked on and she was not shortlisted cannot be correct as these would have invoked different disputes with different dates. A referral of the readvertisement of the post for instance would have required an application for condonation in November 2025.

26. The Applicant testified that she was excluded from the shortlisting process as her RQV was wrongly captured as 15 instead of 16, her years of experience were not considered, her being on PL2 whereas the First Respondent considered applicants on PL3, and she was victimised for having lodged a grievance. The First Respondent disputed these contentions by the Applicant and led evidence that the reason why the Applicant was not shortlisted was that after her application was considered and she was scored in line with the criteria that was set in the fresh shortlisting process of 03 October 2025, her total score was 11, and she did not make the shortlist.

27. Ms Motsepe who testified for the First Respondent led evidence that the District Director had after considering the Applicant’s challenge to the first shortlisting process, directed that the process be nullified and that new criteria be set and the process be done from scratch. The panel had set the criteria as follows: 3 to 10 years’ management experience was to be scored 3; 11 years and above management experience was to be scored 5; PL1and PL2 were to be scored 3; PL3 and PL4 were to be scored 5; Primary School experience was to be scored 1; Secondary School experience was to be scored 2; Management qualifications were to be scored 1 for certificate, 2 for diploma, 3 for degree and 4 for Masters.

28. The Applicant could not dispute the criteria that was used in the shortlisting process and that was reflected on the minutes of the shortlisting process nor that the panel had the discretion to set the criteria. She however contended that the criteria were not in line with the Government Gazette wherein the post was advertised. She further contended that the Gazette required seven years’ experience which she had. Ms Motsepe conceded that the Applicant possessed seven years’ experience and she demonstrated that these years of experience fell within the criterion that scored managerial experience, taking into consideration the number of years in the managerial position, a score of 3 being allocated for 3 to 10 years and a score of 5 being allocated for 11 of experience years and above.

29. Ms Motsepe testified that the PL1 and PL2 applicants including the Applicant who is on PL2 were considered in the fresh shortlisting process and the score allocated to these levels was 3. The Applicant was accordingly scored 3 on this criterion. It was common cause between the parties that the advertisement of the post required qualifications of minimum REQV13. The Respondent did not dispute that the Applicant had REQV 16 qualifications and not 15 as recorded on the PERSAL records. The Applicant did not dispute that she was scored 3 on the criterion relating to qualifications. The REQV issue is neither here nor there as the Applicant’s qualifications alone would not have given her an upper hand in the process.

30. The Applicant testified that she was informed by one of the panel members of the shortlisting process who also provided her with an audio recording of the process, that the panel had agreed to set the criteria to disadvantage her as she had lodged a dispute. The allegation by the Applicant was disputed by the Respondent and it was not corroborated with any other evidence save for the Applicant’s say-so.

31. In any unfair labour practice relating to promotion dispute, the onus rests with the applicant employee to prove, on a balance of probabilities that the employer committed an unfair labour practice by not promoting him/her. The Applicant must show through evidence that he/she was the best candidate for the position and that the decision to prefer another candidate over him/her was unfair. The employer is on the other hand also required, when challenged in promotion disputes, to prove that it acted fairly and in good faith in the process that excluded the Applicant from promotion. This principle was confirmed by the Labour Court in Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT.

32. The Applicant contended that the First Respondent victimised her for having disputed the initial shortlisting process of the position and deliberately excluded her from the process, despite her having met the requirements of the post. The First Respondent demonstrated through documents and the oral evidence of Ms Motsepe, that the criteria that was agreed to by the shortlisting panel were fair and that all applicants including the Applicant were considered and scored according to the criteria. The applications were considered on merit, and the Applicant was treated in the same way as the other applicants. The Applicant obtained an overall score of 11 in the process, which fell below the scores of the five candidates who were shortlisted for the post, including the Second Respondent who was ultimately appointed in the position.

33. The Labour Court in Mahape v City of Tshwane Metropolitan Municipality and Others (JR 1887/21) [2023] ZALCJHB 176 held that an Applicant was required to do more than show that he/she was a suitable candidate for shortlisting. They were required to establish that the decision not to shortlist him/her was arbitrary, irrational, or motivated by malice. The same principle was confirmed by the Labour Appeal Court in Department of Higher Education and Training v Commissioner Bheki Smiza N.O and Others [2024] ZALAC 5. The Applicant in this matter failed to establish any of these elements. It therefore stands to reason that her claim for unfair labour practice relating to promotion must fail. The Labour Appeal Court in the latter case held that there was nothing wrong with the decision by the shortlisting panel to introduce an additional criterion to the criteria stated in the advertisement, in order to limit the number of candidates. The employer was found not to have acted in bad faith, with ulterior motive, arbitrarily, capriciously or in a manner that was grossly unreasonable in relation to the employee.

34. The Applicant in this matter failed to prove, on a balance of probabilities, that the criteria used in the shortlisting process of 3 October 2025 was established to disadvantage her, or that it was made in bad faith, with ulterior motive and was arbitrary or capricious.

35. The Applicant sought an order that the First Respondent refrain from victimising her in future recruitment processes and that she be removed from the “blacklist” based on her having lodged the dispute. Even if I were to find that the allegation of victimisation and blacklisting is true, I would not have the jurisdiction to grant the order sought by the Applicant in this matter. The Applicant should not be deterred from applying for promotional posts and from challenging processes if she believes that the employer has flouted procedure or has acted arbitrarily in any of the processes.

Award
36. The Applicant, Sophie Sibongile Nqandolo has failed to prove on a balance of probabilities, that the First Respondent, Education Department of Mpumalanga has committed unfair labour practice relating to promotion against her, by failing to shortlist her for post of Principal at LD Moetanalo Secondary School.