Commissioner: NTATE MABILO

Case No. ELRC446-24/25 MP

Date of Award: 29 August 2025

In the ARBITRATION between:

National Teachers Union obo Khumalo, Mduduzi
(Union / Applicant)

and

Education Department of Mpumalanga
(Respondent 1)

Sandile Msweli
(Respondent 2)

Union/Applicant’s representative: Sibusiso Bernard Shakwana of NATU.
Union/Applicant’s address:

Respondent 1 representative: Bongani Malaza, Employee of the respondent.
Respondent’s address:

Respondent 2 Representative: Glodine Thobela

DETAILS OF HEARING AND REPRESENTATION:

1. The arbitration of the alleged Unfair Labour Practice dispute between National Teachers Union obo Khumalo, Mduduzi (Applicant) and the Education Department of Mpumalanga (Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), virtually on the 25 April 2025 and 04 August 2025.
2. The applicant was represented by Mr. Sibusiso Shakwana of the National Teachers Union (NTU) and the first respondent was represented by Mr. Bongani Malaza, an employee of the respondent. The second respondent, Sandile Msweli was represented by Ms. Glodine Thobela.
3. Mr. Skhumbuzo Luthuli provided interpretation services.
4. The proceedings were conducted in English and were manually and digitally recorded.
   PRELIMINARY ISSUES
5. The first respondent raised a point in limine stating that the case was moot in that the applicant had been appointed to a post at the same level as the one he was contesting. I heard submissions and made an informed decision. My decision on the point in limine is as per the conclusion of this award.
   ISSUES TO BE DECIDED
6. I am required to determine whether the respondent acted unfairly in not appointing the applicant to the post of HOD and appointing someone else, and if so to determine the remedy.
7. Relief sought was the setting aside of the appointment and the re-advertising the post.
   BACKGROUND TO THE DISPUTE
   8.The applicant started working for the respondent in 2016..
8. His latest position was HOD.
9. The respondent is the Education Department of Mpumalanga.
   SURVEY OF EVIDENCE AND SUBMISSIONS:
   Applicant party submissions:
   The first witness, Mduduzi Khumalo testified under oath and stated the following:
10. That he was HOD at Mphoti Primary School. He applied for the post of HOD which was advertised and he was shortlisted and interviewed. It was closer to where he wanted to stay.
11. The union observer told him that he was scored the highest and the panel agreed to recommend him. Reference was made to the letter of recommendation from the SGB to the District and to the minutes of the interviews. He stated that he was more qualified and more experienced than the appointed incumbent.
12. When asked why he pursued this matter while he was already appointed in a similar post he replied that the reason was that otherwise the respondent would continue with unfair labour practices.
13. Under cross examination he confirmed that he was already appointed to an HOD post in Nkomazi with effect from the 1 September 2024.
14. When told that he was now placed at a school near his place of residence he replied that while he resides in Schoemansdal, he had an apartment in Kabokweni near the Mthayisa Primary School.
15. It was put to the witness that he provided his residential address in his application which was near to where he was appointed and no other address. He chose not to comment.
16. Again, he was asked whether the observer told him what score did obtained and he replied that he was not told the score but that he performed very well in the interviews.
17. When asked how was he prejudiced he replied that if he did not challenge it the processes would suffer. Should the appointment be set aside the department would benefit in improved processes and he would benefit justice.
    The second witness, Jomo Elmon Masane, testified under oath and stated the following:
18. He was a School Principal at Manzana Circuit. The witness was part of the interviewing process, as an observer.
19. The applicant, Mduduzi Khumalo was number one and the appointed incumbent was number two on the scoresheet.
20. After the interviews the chairperson indicated that the SGB had an interest in the second highest candidate. When challenged, the chairperson withdrew the interest. The final to be recommended was that the applicant would remain number one. The chairperson was the former principal of the same school.
21. Under cross examination he stated that he did not sign the minutes of the interviewing panel but asked someone to sign on his behalf after it was read to him. He ascribed the silence of the minutes about the issue of interest to be an omission.
22. Again, the witness agreed that the employer may appoint any of the three recommended candidates.
    Respondent party submissions:
    The respondent’s witness, Bathoshiyeng Elsie Chiloane testified under oath and stated the following:
23. She was the principal of Mthayisa Primary School at the time of the interviews. She had been the principal of the school since 2015.
24. She identified the recommendation from the SGB to the District Manager, which recommended the appointed incumbent as number one followed by the applicant as number two and Ms. Nyambi as number three. She stated that the document was from the SGB and signed by the Chairperson.
25. The witness further confirmed that the initials on the document were those of the committee members.
26. She attended as a resource person during the interviewing and selection process for the post in question.
27. Under cross examination she stated that the interviews took place on the 28 May 2024 and the recommendation was made on the same day. After the interviews the SGB members met and agreed on the recommendation.
28. It was put to her that the SGB never met alone after the interviews and she did not comment. It was further put to her that the recommendation was not from the SGB and it was done after the process to which she had no comment. She stated that the SGB members who were in the interviewing panel, did meet that evening.
    ANALYSIS OF EVIDENCE AND ARGUMENTS:
29. The dispute was referred as unfair labour practice in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995 (as amended (LRA). According to the LRA there are specific actions that constitute unfair labour practice and they are stated as follows:

(a) unfair conduct by employer relating to the promotion, demotion, probation, training or provision of benefits.
(b) the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee.
(c) failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement.
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act of 2000.

31. The applicant’s matter is directly linked to subsection (a) above.
32. I considered all relevant evidence and arguments raised by the parties and I have only referred to evidence and arguments that I regard necessary to substantiate my findings and determination of the dispute.
33. In the case at hand, the applicant’s version is that he was the most suitable candidate to be appointed and he was overlooked when the respondent made the appointment. A less suitable candidate was appointed to the post. Even though he was later appointed to a similar post at a different school, he was not happy because he had an apartment near Mthayisa Primary School, where the post in question existed.
34. The version of the respondent was that he was not the most suitable candidate as stated in the minutes of the interview committee and in the recommendation of the SGB. In addition, he was appointed to a post of HOD similar to the one he was aggrieved about. The applicant did therefore not suffer any prejudice. The post he currently occupied was located next to the address he provided in his application.
35. There were some discrepancies in the process, and those need to be avoided in processes of screening and appointments, such as allowing people to sign documents they were not supposed to even see. If left unattended such discrepancies can jeopardize the processes. Processes such as this need to be executed with extra care. Having stated this, The discrepancies noted did not warrant the reversal of the process.
36. Flowing from the above, and having listened to evidence, it became clear that the applicant did indeed contest for the post in question and he was found suitable for appointment together with the other two with whom he was recommended for appointment. He was never appointed and he remained a recommended candidate. Shortly thereafter, he was appointed to a post at the same level as the one contested. He accepted the appointment and confirmed in the hearing that he held that position of HOD.
37. The issue of distance from where he lives became immaterial and had no basis because he was never appointed in the post contested and therefore did not lose anything that he already had. I am convinced that no prejudice was suffered by the applicant in that regard.
    Based on the above facts and all other evidence considered, I conclude with the following award:
    Award:
38. The applicant party did not prove on a balance of probabilities that he was subject to an unfair labour practice.
39. The Applicant’s dispute referral is accordingly dismissed.

Ntate Mabilo
ELRC Dispute Resolution Panelist