Commissioner: Lanthis Taylor
Case No.: ELRC72925/26WC
Date of Award: 30 March 2026

In the Arbitration between:

Bernard Solomons
(Union/Applicant)

and

DEPARTMENT OF EDUCATION – WESTERN CAPE – (WCED) 1st Respondent

Mr. Dean Muller – 2nd Respondent
(Respondent)

Union / Applicant’s representative: Advocate Nathan Williams

First Respondent’s representative: Ms. Athne Mpayipheli (WCED Representative)

Second Respondent’s representative: Mr. Nigel Adams (SADTU)

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. An arbitration hearing was convened under the auspices of the Education Labour Relations Council on 21 November 2025 and concluded on 24 March 2026 by way of the virtual platform, Microsoft Teams. The applicant, Mr. Bernard Solomons was represented by Advocate Nathan Williams. Ms. Athne Mpayapheli represented the respondent, the Department of Education – Western Cape as the first respondent and the incumbent in this promotion dispute, Mr. Dean Muller was represented by Mr. Nigel Adams of South African Democratic Teachers’ Union (SADTU). The proceedings were conducted in English and were digitally recorded.
2. It needs mentioning that the applicant’s representative during the presenting of his closing arguments made an odd, completely unrelated and disconnected comment to the dispute before me. Advocate Williams made mention that I am a Commissioner at the CCMA and a number of Bargaining Councils as well as being a presiding officer for WCED and specifically that I had declined his application for legal representation in one of the matters that I had presided over under the auspices of the WCED. It is no secret that I, as many of my Commissioner colleagues do, render services in different forums. I do so without fear of favour or prejudice and this is why the comment from the representative appears as an odd one at such a late stage of the proceedings. There was no alluding to or even any hint of the applicant or his representative perceiving bias on my part. Furthermore, there was no application for my recusal for me to consider.
3. I will deal with this dispute on the merits of the matter very much as I would deal with any other matter which comes before me in any forum with each matter individually having its own merits.

THE ISSUE IN DISPUTE

4. The issue before me is in relation to the applicant, Mr. Bernard Solomons’ claim that the WCED committed an unfair labour practice in not appointing him to the position of Principal of Alfons Primary School. The pre-arbitration minute reflects the following issues to be in dispute:
   • Whether the first respondent complied with its recruitment and selection policy
   • Whether the applicant is or was the most suitable candidate
   • Whether the conduct of the first respondent in appointing the Second Respondent and not appointing the Applicant was fair as contemplated under established jurisprudence pertaining to “promotion” disputes.

BACKGROUND TO THE ISSUE

5. The following is common cause as set out in the pre-arbitration minutes and from what I gleaned in the presented evidence and testimony:
   • The applicant and the second respondent are employed by the WCED based at Alfons Primary School in Windmeul, Paarl.
   • The applicant was appointed as the acting principle of the school from 2020 on roll of contracts and received positive QMS reports annually.
   • The second respondent was appointed as principal on 1 October 2025.
   • The post was initially advertised in 2021. The applicant was shortlisted and interviewed. The post was not filled at the time. The Second Respondent was not shortlisted or interviewed in the 2021 process. The vacancy was not filled at the time.
   • The post was advertised again in 2023. Both were shortlisted and the Second Respondent was appointed ahead of the applicant.
   • The post was again advertised in 2025 but this does not have any bearing on the dispute before me

SURVEY OF EVIDENCE AND ARGUMENT

6. In this arbitration before me, the applicant and the second respondent, Mr. Dean Muller testified in support of their own cases. The first respondent called one witness, Mr. Linley Truter. All the witnesses testified under oath and, for ease of reference, the relevant aspects of their respective testimonies will be dealt with in the analysis, hereunder.

ANALYSIS OF EVIDENCE ARGUMENT

7. The dispute before me relates to an alleged unfair labour practice claim relating to a promotion in terms of S186(2)(a). The applicant, Mr. Bernard Solomons bears the burden of proving that the WCED’s failure to promote him instead of Mr. Dean Muller, was arbitrary, capricious and unfair.
8. Section 138(1) of the Labour Relations Act dictates that a Commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) states that the commissioner must within 14 days of the conclusion of the arbitration process issue an arbitration award with brief reason signed by that Commissioner. In accordance with these provisions, I have duly considered the testimony of all witnesses presented under oath; perused the combined bundle of documents and while I have considered all the evidence presented, I am not required to regurgitate everything that I have heard. I am just required to provide brief reasons to substantiate my findings.
9. The applicant testified to his qualifications and experience. He also testified that he had been acting for an extended period of 4 years and 9 months, a point that was belaboured by his representative. This submission was undisputed but the first respondent’s representative stated that an acting stint does not necessarily grant the person who is acting an automatic right to be appointed. I agree with this sentiment but it would most certainly stand such person in good stead with acquiring relevant experience and more so in this instance where it was submitted by the applicant that the second respondent did not have the same acting experience as he did. It was also submitted by the applicant that he had an educational qualification of REQV15 whereas the incumbent, second respondent only had REQV13.
10. The evidence revealed that the minimum requirements for appointment into the senior role of principal were met by both the applicant and the incumbent second respondent and it was submitted that the distinction between the two related to the interview process where the second respondent fared better than the applicant did. It is noted that the interview process is but one of a few processes in the holistic evaluation of skills and competencies.
11. As indicated earlier, the initial advert was in 2021. At the time, the applicant was acting as the principal and was the top candidate for appointment into the position. For some unknown reason, the post was not filled and the applicant continued to act in the position of principal. At the time, Mr. Truter was seconded onto the panel as an outside party to the process as he was external to that particular circuit. For purposes of this award, I will not be comprehensively considering the advert of 2021 or 2025. The nub of this dispute relates to the post 490 of 2023 which is the post that was confirmed as having been filled by Mr. Dean Muller in a letter dated 17 July 2025 and signed by B Walters in his capacity of HOD.
12. The first respondent’s witness, Linley Truter testified that he was the WCED resource person and Circuit Manager during the 2023 process. From my perusal of the documentary evidence, the recruitment process involving Mr. Truter ended with the ratification process on 31 October 2023. Truter’s role as circuit manager of circuit 7 ended on 31 December 2023 and from the documents and Truter’s testimony, Mr. Kayaletu Boesman took over from him as circuit manager.
13. Mr. Truter gave a full overview of the process that unfolded during his tenure as the circuit manager. This ranged from the advert (re-advertised post 490 of 2023) being placed until the documented ratification process. He could not explain why the dates next to the signatories on the minutes were omitted but stated that this did not have a material bearing on the process as the two candidates had been taken through to the interview process.
14. Truter could not explain why the applicant’s scores were omitted in the documentation that he had submitted and stated that this was “strange”. He confirmed that he had loaded the documents on the e-recruitment portal and that the HR functionaries would send incorrect documents back. This was not done.
15. Truter was questioned about the nomination process and specifically in the instance where there are less than three candidates. It was pointed out to him that an SGB consultation process had to take place with the HOD in the event of less than three candidates being considered. Truter responded that he represents the HOD as the resource person for such consultation. This seems a bit odd insofar as he was the circuit manager, the appointed resource person and now also claimed that he was representing the HOD in the consultation process. He presented no delegation of authority or any evidence to substantiate this version. In my view, this is a bit of judge, jury, executioner and mortician. This does not make any sense in terms of due process.
16. Truter then exits the process and is replaced by Mr. Boesman. Despite that there was a nomination process, a ratification process and as claimed by Truter a consultation with him as the proxy for the HOD, no appointment was made. The next correspondence reflects minutes of 23 October 2024 where the minutes reflect that 8 other candidates were considered and 2 were shortlisted for the post of principal Alfons Primary School under vacancy 490 0f 2023. The 2 new candidates, Rangasamy Krishnaveni and Alisha Steyn were listed to be invited for an interview in addition to the already nominated candidates. The interview minutes reflect that Krishnaveni indicated that she could not attend the interview and Steyn did not respond to the invite. Interestingly, this process was conducted one year after the ratification of Muller as the first preference and Solomons as the second preference. In the shortlisting process as reflected in the minutes, neither of these two qualified to be considered for interview purposes in the 2023 process.
17. In my view this process contradicts the version presented by Truter that the nomination of less than three candidates was consulted with him as the representative of the HOD. If that was an acceptable situation in 2023, then surely there would have been no need for additional nominees in 2024 and an appointment would have been made. This additional process smacks of a “fixing up” of a flawed process that was extended over the period of 2023 and 2024. Truter testified that he was not aware of the 2025 advert and I am not considering that process as part of this arbitration save for that it is clear that there is a serious disconnect between the circuit management and the recruitment process.
18. Muller initially was not going to testify. However, I as Commissioner, afforded him the opportunity to respond to Solomons’ averment that he had personal relationships with the SGB members. It was averred that this was why he became the preferred candidate in the 2023 process leading to his appointment despite not featuring in the 2021 process or even obtaining additional qualifications or experience between the two processes. He remained at Post Level 1 level and only periodically acted in Solomons’ Departmental Head position that was vacant due to Solomons acting as principal. Muller testified that he was part of the SGB as treasurer and his relationship with the SGB members was that he had taught some of them and was currently teaching their children. He had been a part of the school for 24 years.
19. The matter of Department of Rural Development and Agrarian Reform v General Public Service Sectoral Bargaining Council and Others (PA3/18) [2020] ZALCPE 2; [2020] 4 BLLR 353 (LC) (6 January 2020) which was duly referred to by the applicant’s representative, outlines that the decision of the employer should not lightly be interfered with by the courts or an arbitrator unless there is an assailable reason which shows that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration; or the decision was arbitrary, capricious or unfair; or the employer failed to apply its mind to the promotion or acted in bad faith.
20. In this instance, I am of the view that the first respondent failed to apply its mind to the promotion based on what was presented as a recommendation to the HOD. Mr. Truter stated that signing of the minutes without being dated, had no bearing on the recommendation. However, he could not account for the omission of the applicant’s scoring in relation to that of Muller. While it may have been the recommendation of the SGB to nominate Muller as the preferred candidate and Solomons as the secondary candidate, it remains the prerogative of the HOD to appoint whom he or she believed to be the most suitable candidate. It is my view that in the absence of a full disclosure of comparative scoring of the two candidates, the HOD was not properly appraised of the interview panel’s scoring and as such could not fully exercise his or her prerogative.
21. While I have indicated that I will not be dealing with the 2021 advert and process per se, this does have a bearing on the appointment. The 2021 process did not result in an appointment. Truter testified that when he became the circuit manager of circuit 7, he initiated the re-advertising of the post and formed part of that process until 31 December 2023 whereafter Boesman took over as circuit manager. It was not disputed that both Solomons and Muller had applied for the post along with others in 2021. Muller did not make the top 3 selection. The SGB members in 2021 were Matthyse, Douglas, West, De Jongh and Fortuin. This group recommended Solomons as the preferred candidate.
22. The SGB in 2023 consisted of Fortuin, Goliath, Engelbrecht, West, Noble and Theron. This group recommended Muller as the preferred candidate. It was undisputed that both candidates had the same qualifications in 2023 as they had in 2021. Prior and pursuant to the 2021 process, Solomons remained the acting principal whereas Muller did not gain the same experience. Despite the HOD having the prerogative to appoint who he or she deems to be the most suitable candidate; it would most certainly be a procedural irregularity if the HOD does not consider the applications holistically and only based the appointment on the result of an interview. It was not disputed that Solomons has a REQV15 level of education, is an officially appointed Departmental Head and had acted as principal for an extended period while Muller has REQV13, was a Post Level 1 Educator and did not have acting experience in the role of principal.
23. It is my view that the employer failed to apply its mind to the promotion holistically and in doing so acted unfairly towards the applicant. An overview of my reasoning is as follows:
    • The applicant was the leading candidate in the incomplete 2021 process – this was not considered holistically in the appointment process.
    • The applicant acted in the position continuously without any interventions relating to performance.
    • In the 2023 process, Truter’s role extended from circuit manager to resource person to HOD representative (without proven delegation of authority) for supposed consultation with the SGB. He was part of the SGB processes so in essence consulted with himself as the HOD representative; hence my sentiments of judge, jury, executioner and mortician
    • Solomons’ scoring was omitted from the submission to the HOD. Truter called this strange given that he was the resource person who uploaded the information.
    • According to Truter, a consultation with him as HOD representative took place. This was due to there being only two nominees instead of the minimum of three as required by the policy. Despite this, no appointment took place.
    • A year later, Boesman facilitated a process where two other previously disqualified nominees were brought into the process for consideration. No reasons provided so therefore it can be inferred that this was to remedy a procedural defect which in effect should not have been a defect if indeed there was a legitimate consultation between the SGB and the HOD regarding the two nominees in 2023.
    • Muller testified that he had taught some of the SGB members who had nominated him and that he was also teaching their children. In my view this could potentially be viewed as an influencing factor in their nomination process. Once again there does not appear to have been a full disclosure to the HOD in this regard.
    • The overall timeframe for this process to be concluded is inordinately long with years passing before decisions were made without holistic consideration.
24. In consideration of the above, I find that the first respondent has perpetrated an unfair labour practice against the applicant, Bernard Solomons both procedurally and substantively. Mr Solomons seeks as a remedy that the appointment of the incumbent, Mr. Muller be set aside and that the post be readvertised. Alternatively, he seeks to be appointed into the post as a protected promotion. He would not find any comfort in an award of compensation as the level of indignity that he has suffered would not be appeased by an award of maximum compensation.
25. I am of the view that a protected promotion would not be a viable option for the parties. Such consideration would place one of the two in a supernumerary position and would also impact the first respondent’s staffing establishment which has already been placed under pressure by budget cuts and austerity measures. Awarding compensation would also not be an appropriate remedy and will be a bitter pill to swallow for someone who has been acting in the position and who has been seen in the authority of principal by the school community for a number of years. In my holistic approach to this dispute, to determine what would be appropriate as a remedy under the circumstances, I am also guided by the Constitutional principle that the welfare of the child and Learner is of paramount importance and that there should always be a level of stability within the school environment.
26. Accordingly in consideration of the above, I make the following award:

AWARD:

27. The appointment of Mr. Muller is set aside effective from 1 October 2025. The first respondent, WCED is ordered to re-advertise the post and open it to all qualifying staff for application and consideration at its earliest convenience.

L M Taylor
Commissioner