Case Number: ELRC 225-24/25GP
Commissioner: Ramadimala Jacky Mateta
Date of Award: 02 October 2026

In the MATTER between

William Ngwako Sodi
Employee

And

Department of Education-Gauteng
(Respondent)

Catherine Shihambi
(2nd Respondent)

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration proceedings were held on the 10th of October 2024; the 28th of November 2024; the 11th and 12th of June 2025; the 8th of August 2025; the 28th and 29th of August 2025; the 6th of November 2025; 14th and 15th of May 2026; 11th and 12th of June 2026; the 28th of August 2026 and were finalized on the 31st of August 2026 at the respondent’s Tshwane South District Offices in Pretoria.
2. The employee party Mr. William Ngwako Sodi (“Applicant” hereinafter) was present and dealt with his matter represented by Mr. Tebogo Ramalekana, a legal representative.
3. The employer party, Department of Education-Gauteng (“1st Respondent” hereafter) was also in attendance and was represented by Mr. John Marakala, Labour Relations Deputy Chief Education Specialist of the respondent.
4. The successful candidate, Ms. Catherine Shihambi (“2nd Respondent” hereafter) also attended, except only on the 28th of November 2024, where a ruling was issued ex tempore. She was represented by Mr. Enock Senwamadi, SADTU office bearer.
5. On the 14th and 15th of May 2026, Mr. David Mamogoho was utilised as interpreter; Mr. Sono E.R used as a Technical Assistance for visually impaired witness.
6. The arbitration proceedings followed an adversarial approach as both parties were sufficiently represented in the proceedings. A bundle of documents was received from the respondent party and was marked bundle A (“A” hereafter).
7. Parties requested an extension for the submission of their written closing arguments and were given until the 20th of March 2023.
8. At the conclusion of this award,three parties had submitted their written closing arguments.
9. The inquiry was recorded both electronically and manually.

PRELIMINARY ISSUES DEALT WITH PRIOR TO ARBITRATION

JOINDER RULING

10. The joinder ruling for the successful candidate, Ms. Catherine Shihambi as a 2nd respondent, was issued in writing. Reasons were given in the written ruling that was issued to all parties. The ruling forms an important record and integral part of the arbitration award.

JURISDICTIONAL RULING

11. The respondent raised an issue relating to the jurisdiction of the Council to hear and determine the dispute between the parties. It contended that the Council does not possess the necessary jurisdiction to hear and determine the applicant’s referral does did not comply with the rules of the Council. The ruling was issued in writing. The reasons were outlined in the ruling. The ruling is to form part of the records of the proceedings and an integral part of the award.

LEGAL REPRESENTATION RULING

12. The respondent objected to the legal presentation of the applicant. Submissions were made in writing, and they form part of the records of the proceedings. In issuing the ruling I considered amongst others the applicant’s submissions that there may be questions of law that may be raised in the dispute; that looking at the number of witnesses that may be brought to testify in the proceedings; seniority, issues that they may be testifying about and therefore making the dispute complex.
13. Did I also considered his submissions that there may be no public interest in the dispute, however considering that the respondent is far more advanced than the applicant in dealing with labour disputes, and hence comparative ability weighed more in favour of the applicant for one to be reaching a conclusion that it would be unreasonable to expect the applicant to deal with his dispute without legal representation.
14. Representation at arbitration is regulated by clause 17.4.1 of the ELRC constitution. It specifically provides that an employee party to the dispute may appear in the arbitration proceedings in person and/or be represented by a legal practitioner or by a member, office bearer or official of that party’s trade union.
15. Exception to the rule according to clause 17.4.2 is that if the dispute being arbitrated is referred in terms of section 69(5), 73 or 73A of the BCEA or about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to an employee’s conduct or capacity, the parties are not entitled to be represented by a legal practitioner in the arbitration proceedings unless the commissioner/panelist and all parties consent or the commissioner after listening to the application concludes that it is unreasonable to expect a party to deal with the dispute without legal representation. In this matter the dispute that was being arbitrated is an alleged unfair labour practice relating to promotion, therefore not included in the exception to the rule. Legal representation was allowed for that reason.

ISSUES TO BE DETERMINED
16. The applicant has alleged that his non-appointment to the departmental Head post no. TS83ED1066 at Nellmapuis Primary School amounts to an unfair labour practice. I was therefore required to determine as to whether failure by the 1st Respondent to appoint the applicant on a promotional post HOD post TS83ED1066 at Nellmapius Primary School amounts to unfair labour practice, and if found so to determine an appropriate remedy.

  BAKGROUND TO THE ISSUES:

10. Parties concluded their Pre-Arb meeting and signed the Pre-Arb Minutes on the 17th of January 2025. Before starting with the arbitration proceedings, parties confirmed to have held a Pre-Arbitration Conference. Minutes of the pre-arb conference were read into record, the copy was handed over, and parties confirmed the binding nature of their pre-minutes.
11. It was agreed that the dispute being arbitrated is an alleged unfair labour practice dispute relating to promotion. It was also agreed that successful candidate Ms. Catherine Shihanbi was joined as a second respondent in the matter.
12. It was also agreed that the applicant is an employee of the respondent. At the time of the alleged unfair labour conduct, he was occupying the position of a CS1 educator at Nellmaphuis Primary School.
13. It was also common cause that the applicant applied for the HOD, promotional position at Nellmapius School, post number TS83ED1066 which was advertised in the respondent’s Open Vacancy Circular no. 08 of 2023 and was not appointed. The second respondent was in turn appointed.
14. The applicant avers that his non-appointment to the position of the HOD at Nellmapius Primary School as stated above, amounts to unfair labour practice as defined in terms of section 186(2) of the labour relations Act 66 of 1995 (“Act” hereafter). He avers that the 1st respondent’s conduct was both procedurally and substantively unfair.
15. He is praying for an order that states that the 1st respondent has committed an unfair labour practice, to be appointed on the Departmental Head (HOD) post stated above, at Nellmapuis Primary effectively from the date of the appointment of the 2nd respondent, nullifying the appointment of the 2nd respondent or giving him a protected promotion.
16. The 1st Respondent contended that the non-appointment of the applicant does not amount to unfair labour practice and that the applicant’s claim should be dismissed.
17. Parties agreed that the matter is correctly placed under the jurisdiction of the Council for determination and the relief sought.

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s case

Opening:

18. In opening the applicant submitted that he would prove with evidence that the interview panel was not properly constituted in that the member whose term of office in the School Governing Body (“SGB”) had expired was included in the panel in violation of South African Schools Act (“SASA”) and Collective Agreement which were contained in the Bundle of documents.
19. He also submitted that he would lead evidence and prove that the chairperson of the SGB had no power to include some members in the interview panel and exclude others. He also submitted that he would prove that the fact that chairperson included unqualified members and excluded a member in good standing from the selection panel highly prejudiced his chances of promotion.
20. He for that reason prayed that errors in constituting selection panel rendered the panel improper, and its decision be set aside and he be promoted to the HOD position.

Evidence:

21. Mr. William Ngwako Sodi testified as a witness in his matter. The summary of his evidence is that he is an employee of the 1st Respondent and has been stationed at Nellmapius Primary School since January 2017. His qualifications are amongst others Matric and Senior Secondary Teachers’ Diploma. The respondent advertised a post of HOD at Nellmapius Primary School (page 22 of A) and he applied. He then wrote a letter to the Circuit Manager (page 23 of A) informing the Circuit Manager that the post was advertised with incorrect information. He received no reply from the circuit manager, the post was not withdrawn, however, he applied.
22. He was a member of the SGB, in the position of secretary. The SGB had an accidental vacancy as a result of retirement of Mr. Ngobese. Normally if the SGB has such vacancies, a new member must be coopted or a Bi-Election be held. Coopted member must as per section 11 of SASA (Page 55 of A) serve the SGB for a period not exceeding 90 (Ninety) days. He always reminded the SGB that Ms. Mavuso, coopted member, was not a member of the SGB.
23. The reason being that the invitation letter (page 68 of A) invited the parents to cooption of the SGB member, however the letter that was giving feedback on the meeting (page 67 to 68 of A) says Bi-Election for that reason, there is contradiction between the two. The cooption meeting was called, and three (3) members were coopted. The meeting was not a Bi-Election meeting. If there was to be Bi-Elections, an Electoral officer would have facilitated. The report also talks about nominations not votes.
24. Ms. Mavuso’s cooption was held on the 30th of May 2023. It was supposed to expire at the end of 90 days. At the time of selection on 24th of August 2023 it had lapsed. He tried to advise, and nobody listened. He, however, attended the interviews. At the interviews he tried to raise the issue with the Branch Secretary of SADTU, Mr. Sfiso, and was advised not to interfere with the process but challenge the outcome of the process.
25. He also received a grievance from another panel member, Mr. Dladla. Mr. Dladla was complaining to him that he was also removed from the selection panel by the Acting Secretary of the SGB. He escalated the issue to the department. A Special Investigation Team arrived at the institution. He however did not get any response about Mr. Dladla’s complaint. He only received a letter about his complaint.
26. Ms. Mavuso was not supposed to be on the Selection Panel. He lodged a grievance at about 3rd of March 2024. The grievance hearing was held around April 2024. It however took more than six (6) for him to receive the outcome. When he asked about the reason for delay, the district said that they were still waiting for the file from the institution with recommendations.
27. Mr. Dladla was a member of the SGB and was therefore eligible to be appointed by the SGB to serve on the selection panel. He was removed because the chairperson of the SGB, Mr. Msiza wanted to dominate. He and the acting secretary are against him because of the letter that he wrote to the district. He is even during the time of arbitration receiving discriminatory treatment. They would not have been fair and impartial to him during selection.
28. Under cross-examination by the 1st respondent, he indicated that he had a total of 23 years in the respondent’s institutions. He agreed having been familiar with legislation applying in education; the PAM and collective agreements. He agreed that according to PAM, the curriculum needs of the school are determined by the principal and consultation of the SGB and the educators. He agreed that the request for advertisement of the post at the school is made by the principal. He, however, does not know who approves the request.
29. He was made to read page 24, paragraph 3.2 which reads as follows: “The Department reserves the right to not fill vacant posts advertised on this list of vacancies should it be discovered that the incorrect information was submitted or published or should there be transfer approved in line with the transfer policy”. He stated that if the District Director; Assistance Director: Selection and Recruitment, were going to come and to testify that the advertisement contained the correctly supplied information, he said that his question shall have then been answered.
30. He agreed to have testified about his letter in page 23 of A. He stated that it is a letter that was addressed to the circuit manager. He, however, failed to show proof that the letter was received by the circuit manager. He also stated that the reason why he applied for the post was that he was qualified, had all qualities and requirements and also acted on the position. When asked to show proof that he acted on the position, he argued that the department did not provide him with an acting appointment letter.
31. He agreed having known the 2nd respondent from the date in which he was appointed at the institution; that he had good relationship with her; that he was not suspecting anything wrong about her qualification; that he was more qualified than her. He, however, failed to show his qualifications or proof in the bundle of documents.
32. He agreed to have been aware that the SGB is a legislative body that recommends appointments of educators. He agreed to have stated that Ms. Mavuso was wrongly included in the selection panel as she was a coopted member of the SGB whose voting rights had lapsed. He conceded having not been discriminated against by the panel except for the differences in questions that he was asked.
33. He testified that on the 25th of May 2023, the meeting that was held was cooption meeting; that Ms. Mavuso; Mr. Khaphola and Ms. Sithole were nominated. He agreed that the meeting formed a quorum. He could not agree that on the day, the parents resolved to have a Bi-Election. He conceded having not taken the minutes of the meeting. He agreed that the deputy secretary, Ms. Eunice Mvelani was taking the minutes. He could not agree that nomination would be followed by election or voting.
34. He agreed having been aware that Mr. Makonde oversaw the SGB’s in the district. He could not respond when it was stated to him that Mr. Makhonde, who was acting as an electoral officer, would come and testify that the majority of parents resolved that the meeting be a Bi-Election Meeting and that Ms. Mavuso got the highest votes and was duly elected and the SGB member.
35. He conceded having stated that he was the secretary of the SGB; that Ms. Mavuso continued to attend SGB meetings even after the expiry of 90 days. When asked what he did about it, he stated that raised it in the SGB meetings. He could not show the minutes of the meeting or the dates of the meetings. He agreed that that should have already painted the wrong picture in the running of the SGB. When asked if it was ever raised with the District Office, he stated that he only raised it with Special Investigative Unit.
36. He agreed that the issues that he raised in the letter on page 28 of A were governance issues. He agreed that none of the issues that he raised in the letter were raised in his dispute. He agreed that a collective agreement, Resolution 1 of 2021, page 73 of R is applied when dealing with recruitment.
37. He could not confirm if paragraph 8 of the Collective agreement was complied with. He, however, conceded that according to the attendance register page 16 of R, he and Ms. Mavuso attended a meeting. He also conceded that according to minutes on page 13 of R, one of the agenda items of the meeting was a panel selection. He conceded that according to the minutes, the agenda was adopted. He also conceded not having raised the issue of Ms. Mavuso not being SGB member in good standing in that meeting.
38. He could not agree that the panel was appointed in compliance with paragraph 8 of the Collective Agreement. He, however, conceded that according to the minutes, the parent component was one member more than other components combined which is what is stated in paragraph 8.1 (page 77 of R) of the Collective Agreement.
39. He agreed that one of the reliefs that he is trying to seek is protected promotion. He conceded that according to the scores on page 24 of R, he obtained 33% while the 2nd respondent obtained 74%. He also admitted having not been ranked one of the three best candidates. When asked the reason why he wants promotion when he was not even the on top three (3), he stated that it was because of procedural unfairness of the process.
40. He agreed having been given opportunity to attend the interviews; he agreed that he was rated by the interviews panel; he also agreed that the interviews are performance based not based on credentials that he said he had. He agreed that the interviews were observed as per paragraph 10 of the Collective Agreement, by amongst others, an official from SADTU. When it was put to him that the chairperson of the SGB would come and testify that the interviews were fairly held, he argued that members of the SGB were already biased against him due to the reasons that he testified about them in the SIU. He agreed that the questions that he was asked, were in line with PAM.
41. When it was put to him that according to the minutes in page 24 of R, a final discussion took place after the last candidate and candidates were ranked according to the scores, he said that he doubts if that happened. He argued that the outcome is not a true reflection of his performance. He also argued that members who volunteered to be in the panel, were allowed while others who were members in good standing of the SGB, were excluded from the panel. He agreed that the decision to appointment an educator rests with the Head of Department or his/her delegate. He agreed that he did not attend the interview the same day with others. He could not explain whether it would have been fair for him to be asked the same questions that others were asked in the previous interview session.
42. Under cross-examination by the 2nd respondent, he agreed that he was shortlisted for the interviews as like the 2nd respondent. He conceded that the 2nd respondent was scored far much higher than him. When asked what was the reason he says he was the best candidate, he stated that it is because everyone in the panel was advised by him.

Closing Arguments

The applicant’s closing arguments were submitted and received in writing. The copies of the written closing arguments forms the most important records of the proceedings and are contained in the ELRC’s file. For the brevity of the award, I found it not necessary to restate the same in the award. Save to say that they were studied and fully considered when concluding the award. 1st Respondent’s case

Evidence

43. Mr. Immanuel Ledwin Smangaliso Msiza testified. The summary of his evidence is that he is the chairperson of Nellmapius Primary School SGB. He knows both the applicant and the 2nd respondent as educators at Nellmapius Primary School. He has no personal favours or vendetta with any one of them. His relationship with them is that of professional as they are educators at the school where is serving as the chairperson of the SGB.
44. What brought about a dispute is that the 1st respondent advertised a post of the HOD under post number TSED1066 at Nellmapius Primary School. As the chairperson of the SGB, he was called for a workshop where they were capacitated to perform responsibilities of filling the post in terms of Collective Agreement 1 of 2021. The emphasis was that the Collective Agreement must be followed to the latter.
45. They then called a meeting of the SGB and selected a panel in terms of paragraph 8.1 of the Collective Agreement, minutes of the meeting are contained in page 15 of R. The collective agreement requires that there should be one parent member more than the other component combined in the shortlisting panel. The collective agreement requires that one member in the panel is more knowledgeable. Mr. Dladla was then released because principal was the only member who is knowledgeable and who could advise the SGB to take an informed decision.
46. Shortlisting was held and page 17 of R contains the minutes. Shortlisting was guided by a Collective Agreement and one inclusive criteria was that there must be an observer. The scriber extended the invitation to organized labour and Mr. Senwamadi attended on behalf of SADTU.
47. When doing shortlisting, they were guided by collective agreement which states that one of the criteria is that they must be guided by curriculum needs of the school. They used the advertisement appearing in the circular (page 12 of R). The subjects that were required as per advertisement were Social Sciences and Afrikaans. They followed the shortlisting process in terms of paragraph 11 of the collective agreement. All the requirements that are set out in paragraph 11.3 were followed to the letter and shortlisted candidates were invited for interviews.
48. The interviews were held on the 28th of October 2023. Candidates were interviewed according to plan. The applicant was not present and when phoned he indicated that he had a problem. He does not remember if the applicant had said that he was sick or having a bereavement, however, the proof that was received was found sufficient. The panel discussed and took a decision that the applicant must be given his day. The scriber phoned the applicant and informed him about the decision. The following Monday after the applicant submitting proof, it was agreed that he would be interviewed on the 31st of October 2023.
49. The applicant’s version that Ms. Mavuso was a coopted member and was not supposed to be on the panel, is not correct. There was a meeting that was called as per invitation on page 68 of A. Initially the aim was to coopt a member into the SGB. However, when the meeting took place on the 24th of May 2023, the parents attended in their numbers. The meeting was chaired by the IDSO Mr. Lawrence Makhondo. He then explained to the parents that if parents coopted a member, they would then be required to come again and for the Bi-Elections. The parents then resolved that since the meeting had a sufficient quorum, then it must continue as a Bi-Election. Ms. Mavuso was then duly elected as a member of the SGB.
50. That Ms. Mavuso continued attending the meetings of the SGB even when her cooption period has lapsed is not correct. The applicant was not present in attendance of the meeting. He also did not raise the issue at the SGB meetings. Had he done so, he would have been informed. She continued attending and performing SGB functions as a member of the SGB in good standing. She was appointed as a member of the shortlisting panel because she was a full member of the SGB.
51. On the 31st of October 2023 the interview panel again sat for the interview of the applicant. They signed an attendance register, signed confidentiality and then formulated a brief agenda. They formulated terms of reference; formulated interview questions, the criteria to interview and source information. They then called the applicant in and started with interviews.
52. The observer was always present and did not object to anything. Each panel member scored the candidates independently and individually. Each submitted his/her scores; the scores were combined and a percentage was determined. After the interviews, they again held a discussion. It was found that the 2nd respondent was ranked the highest together with two other candidates, she was recommended for appointment as it appears on page 24 R. The applicant’s allegation that he was more qualified and that everyone in the SGB relied on his expert advice is not admitted. He attended SGB meetings, giving inputs like any other member.
53. That the applicant must be given a protected promotion would be an injustice to the leaners. The SGB did everything to its best ability. The most suitable candidates were recommended, and the best candidate was appointed. The applicant was not even ranked in the best three; he was in fact the last. The 2nd respondent is showing her best in the position while the applicant is continuing performing badly in his subjects. Any order that seeks to be undoing all this will not be in the best interest of the child.
54. Under cross-examination by the applicant, he admitted it improper and mockery and retracted his utterances that the applicant’s qualifications were attained in 1963 and admitted that it was overreaction to the applicant’s claim that he was advising the SGB.
55. He was made to read page 81 of R, paragraph 12.6 of a collective agreement and read it as follows: “The same questions must be asked to all shortlisted candidates being interviewed for the same post”. He confirmed and agreed that the word ‘MUST’, means that it is compelling. He agreed that questions that were asked to the applicant were not exactly the same as those which were asked to other candidates. He, however, argued that the word in the paragraph 12.6, must be read in the context with the other words in paragraph 12.2 which says, “the questions ‘must’ be set on the day”. the same day in this context implying the day of the interviews. For that reason, making it impossible for the questions that were set on the other day, to be used again on the day of the applicant’s interviews.
56. He agreed that his assertion is not contained in the collective agreement. He however argued that it was done for professional fairness and integrity of the process. He denied that the questions that were asked to the 2nd respondent were CS1 educators’ questions. He also denied that they decided to change questions in order to disadvantage the applicant. He conceded that the total marks for the applicant were 80 while for the 2nd respondent was 90.
57. He conceded that there were some errors in some of his calculations of the marks. He also conceded that in the report, the analysis of the applicant was not explained the same way as other candidates. He, however, denied that he purposefully did so to disadvantage the applicant. He stated that the full explanation of what happened on the different days of interviews is in the minutes. He, however, conceded that the minutes are not in the bundles of documents submitted to the arbitration. He agreed that the report was compiled after the applicant’s interview. In his re-examination, he explained that if the panel had agreed to disadvantage the applicant, they would have refused the applicant’s explanation of the absence on the date of the interview and excluded/penalized him.
58. Ms. Joyce Tintswalo Ndhundhuma testified. The summary of her evidence is that she was the principal of Nellmapius Primary School. At the time of the filling of the post, she was an acting principal. She had no personal issues with the applicant. Their relationship was a professional one of the supervisor and subordinate.
59. As the acting principal of the school, she completed the form, GDE 79, for the filling of the vacant post and submitted it to Human Resources in the district. In the GDE 79 form, she stated the type of post; i.e.. HOD post; the grades and subjects and also the post number. HR advertised the post and she informed the SGB. The SGB called a meeting where a panel was selected. The meeting was held on the 26th of September 2023. When the item of selection of the panel, the applicant recused himself from the meeting as he also applied and had vested interest.
60. In the meeting, they developed a management plan for filling the positions. In the selection of the panel, the chairperson first called for the volunteers. Ms. Mavuso, Mr. Malibe and Mr. Dladla volunteered. The panel was constituted and comprised of the following members: Mr. Msiza (Parent/Chairperson); Ms. Mavuso (Parent); Mr. Malebe (Parent); Ms. Ndhundhuma (Principal/Official); Ms. Dladla (Official) and Ms. Zwane (Scriber/Educator/Official).
61. It was then noted that according to the collective agreement, there must be one more parent member than all other components combined. Meaning that one member of the official component had to be removed. It was then agreed that since the post being advertised was an HOD post, then the acting principal must be there. The other official was an educator also a scriber. It was then agreed that Ms. Dhadha as a General Assistant, be dropped. It is not true that she was chased away.
62. The Scriber then wrote invitations, inviting trade unions to the shortlisting. Shortlisting meeting was held on the 21st of October 2023. Present at the meeting was Mr. Msiza; Mr. Malebe; Ms. Mavuso; Ms. Dhundhuma and Ms. Zwane. Observing was Mr. Senwamadi (SADTU) and NAPTOSA was absent. Shortlisting went properly as per the provisions of a collective agreement. Seven candidates, including the applicant, were shortlisted and were called for an interview (Page 20 of R).
63. It is not true that Ms. Mavuso was a coopted member. She was a full member of the SGB that was elected in the meeting on the 24th of May 2023. The meeting was called as per letter on page 68 of A. She is the author of the letter, and she wrote Co-Option because the meeting was for the parents to coopt a parent member into the SGB. On the day of the meeting, parents attended in their numbers.
64. Mr. Makhondo the SGB coordinator of the district, was requested to explain to the parents the processes. He explained that if they co-opt, they will within 90 days be required to reconvene and hold a Bi-Election. After hearing the explanation, parents resolved that since they form a quorum, then the meeting must continue as a Bi-Election meeting.
65. The electoral officer, the principal of Nellmapius Secondary was not present. Mr. Makhondo then took over and presided over the meeting. There were two other educators from Nellmapius Secondary School who were in the meeting, and they assisted as electoral officers. Parents nominated three parents and continued with elections. Ms. Mavuso then got the highest number of votes and was proclaimed a duly elected member of the SGB.
66. Interviews were held on the 28th of October 2023. In the meeting, the panel and the scriber ensured that all documents that were required for interview were available. The chairperson introduced set of rules that must be followed, all signed attendance registers and confidentiality. The panel discussed the criteria and set down the questions. They agreed as to who would ask which question and time allocation. The candidates were called in as per the programme, each given a piece of paper for scribbling and were interviewed.
67. At about the conclusion of the list, it was realized that the applicant was not available for the interview. They sent the scriber to phone the applicant to inquire about the reason for his absence. When the scriber came back, she informed the panel that the applicant was not present at the school. She reported to them that the applicant said he was sick and unfit for work and would be bringing the proof the following Monday. The panel then agreed to reserve the 31st of October 2026 to interview the applicant. The panel also agreed not to close the interviews session until such time that the applicant was interviewed. The following Monday the applicant submitted the sick note and he agreed with the scriber that his interview would continue on the 31st of October 2023.
68. On the 31st of October 2023, the panel reconvened for the interview with the applicant. They repeated the process that they followed on the 28th of October 2023, including setting interview questions. The applicant was called, given a paper to scribble. The process was explained and they started with the interviews. The trade union observers were present at all times and were satisfied that all went according to collective agreement. After conclusion, they had a discussion and summarized the results. She does not understand how the applicant could say that they were not in good relationship with her. She had a good and cordial relationship with the applicant.
69. Under cross-examination by the applicant, she stated that she started working for the respondent in 1987, that she acted as the principal in 2023 and was appointed in 2024. She agreed that the applicant had once acted as the head of the department, i.e. the same position in question for about six (6) months. She agreed that the interview report does not state that there were interviews held on the 28th of October 2028. She indicated that the report is only a summary and that a complete explanation is in the minutes. She agreed that the questions that they asked the applicant were not the same as those which they asked other candidates.
70. She does not agree that there was no compliance with paragraph 12.6 of the collective agreement. She however argued that questions were set using the criteria but were only modified. She denied having deliberately changed the questions in order to disadvantage the applicant and argued that when they were setting questions on the 28th of October2023, they did not know that the applicant would not attend the interviews. She argued that, in her view, paragraph 12.6 implies that the candidates that attend interviews on the same day must be asked the same questions however, each day the panel must set the questions for interview.
71. When asked as to why she did not seek some advice from the district, she stated that she did not see any need. She denied having colluded with the chairperson of the SGB and other SGB members to jeopardise the applicant. She argued that if that was their intention, they would have simply disqualified the applicant for non-attendance on the 28th of October 2023 as empowered by the collective agreement.
72. She agreed to have stated that she wrote an invitation on page 32 of R. She insisted that the decision to change cooption meeting to a Bi-Election meeting was taken by the parents. She agreed that the electoral officer of their school was Mr. Dzumba, the principal of Nellmapius Secondary school. She testified that Mr. Makhondo did not need to be invited to the SGB meeting as he was the coordinator of all SGBs in the district, therefore it was part of his job description. She insisted that Ms. Dladla was dropped from the interview panel because they wanted to comply with the collective agreement. She disputed the applicant’s version that it was only to disadvantage the applicant. She agreed that cooption only lasts for ninety (90) days. She testified that the documents that prove that parents resolved to change the meeting from cooption to Bi-Election are still available at the school.
73. Mr. Lawrance Makhondo testified. The summary of his evidence is that he is a Deputy Chief Education Specialist: Institutional Management and Governance of the respondent commonly known as Institutional Development and Support Official (IDSO). He has been in the same position for 18 years. His duties mostly, include giving support and developing principals, School Management Teams (SMT) and the SGBs in governance related issues. Nellmapius Primary School is one of the schools under his cluster in the circuit.
74. In performance of his functions, he draws much of his mandate from Gauteng SGB Regulations. The Regulations provide that the HOD must appoint the District Electoral Officers to ensure the smooth running of all elections in the district. That function, the HOD has delegated it to the District Director. The District Director has appointed the District Electoral Officers and also the Election Officers. The regulations further provide that the people who are eligible for such appointments are officials of the department including educators.
75. On the 24th of May 2025, he visited Nellmapius Primary School. Upon arrival, he was informed by the principal that parents meeting was called in order to coopt a parent to fill the vacancy that arose in the SGB. As his responsibility is to support the SGB, he took an advantage and attended the parents meeting. The person who was supposed to facilitate cooption was the principal of Nellmapius Secondary School. He was not in attendance at the meeting however, he had sent two ladies to assist with the task.
76. They requested him, Mr. Makondo, to assist because of his position and expertise. He realized that the parents attended in their numbers and exceeded the 15% quorum that was needed. In line with the National SGB Guidelines, he explained to the parents that if they coopted, they would be required to reconvene within ninety (90) days for a Bi-Election. The parents then anonymously preferred to have a Bi-Election than Co-option. Nominations started and three parents were nominated. Since there was only one vacancy to be filled, election/voting had to followed.
77. The meeting was adjourned for a short time to allow preparation of ballots. The votes were cast on one-man-one-vote and another break was taken for counting. Counting was done in the presence of the nominees. After voting, some parents left and they requested that the principal send them feedback. Counting was completed and it was found that Ms. Sibongile Mavuso got the highest number of votes. She was then proclaimed duly elected as a member of the SGB.
78. Under cross-examination by the applicant, he testified that both cooption and Bi-Election happen when there is a vacancy in the SGB. The difference being that in cooption, the SGB sits and agrees to coopt amongst the parents any person, while in Bi-Election, a meeting is called where parents nominate, and if nominees are more than vacancies that need to be filled, voting will follow. He agreed that the invitation that was sent to parents was for cooption. He indicated that he was not invited but attended as part of his duties.
79. He said that what prompted him to check if parents still needed a cooption is that the parents were more than a quorum and that would in terms of National SGB Guidelines save parents time and cost for the department. He confirmed having facilitated a meeting; confirmed that he is an appointed District Electoral officer. He agreed that the processes that were followed on the day were not for ordinary Bi-Election process. He also agreed that the letter of feedback does not talk about Bi-Election but nominations.
80. He agreed that if the meeting ended up in cooption, Ms. Mavuso’s cooption would have lapsed after ninety days and therefore rendering her attendance of the SGB meetings illegitimate. He denied having removed any member of the SGB from interview panel but only advised as to the constitution of the panel and SGB decided. He could not want to comment if the interview panel was elected outside the SGB. He submitted that the letter on page 68 of R intended to give feedback on the Bi-Elections and not cooption.
81. Ms. Rishile Chauke testified. The summary of her evidence is that she is the Deputy Director: Transversal and Human Resources Service. She was in the position for six (06) years. Her duties include, amongst others, overseeing and management of recruitment of educators and administration staff; managing and provisioning of employees’ conditions of services and benefits. She knows the post that is the center for the dispute at hand. In appointments of educators, she normally receives a file from the line functionaries who work closely with the schools. She received the file pack for the post and checked compliance from advertisement to the recommendations. In performing the duties, she would have a checklist against which the documents are checked and verified.
82. After receiving the file for the post in question, she checked GDE 79, i.e. a form that describes the subjects for which the advertisement for the post was required. She checked Form C, GDE 2R (application forms) for the three (03) recommended candidates; she also checked attendance registers for panel selection; invitation to the trade unions; shortlisting minutes; registers of the panelists; interview minutes and registers; ratification minutes and register; score sheets for the interviews; GDE 3R for the remaining candidates and also regret letters to unsuccessful candidates. She then populated data of all applicants of the post into the system.
83. She found that the file complied with process and compliances as stated in the collective agreement. She looked at the relevant qualifications, to see if the recommended candidates have subjects that were prioritized. She was not aware if there was any member of the panel who was not an SGB member. She also was not aware of any removal of Mr. Dladla from the panel by the SGB and acting principal.
84. While doing due diligence, she also checked the score sheets for all candidates. She found that there were discrepancies in calculation of the scores. She found that the applicant was scored out of 80 marks while others were scored out of 90 marks. She followed the discrepancy and found that it was caused by the differences in totals for question number 5. In the applicant’s scores, the question was allocated 15 marks while among all other candidates, it was allocated 25 marks.
85. What they normally do in the district, if they find such discrepancies, they do not return the file to the school. What she did was to remove question 5 (five) from all candidates mark sheet. She then recalculated the total score for all candidates. After calculating there were no major changes in terms of the rankings of the candidates. She then wrote a note for the attention of the District Director and attached her script of new scores. The file was then taken to the District Director for finalization and appointment.
86. Under cross-examination by the Applicant, she confirmed having followed the process following a checklist. She confirmed having testified that she recalculated the marks. When asked what empowered her to do, she stated that there is no law but only that it is part of her job description in performance of her administrative duties. She conceded that the file and its documents had some errors, however argued that the errors were not so material errors that warranted the process to be taken back to school for re-doing.
87. She also confirmed having been aware that the applicant was not interviewed on the same day with other candidates. She, however, denied that the questions that the 2nd respondent and others were asked, were not for the head of department’s post. When it was put to her that the panel violated the collective agreement by asking the applicant different questions, she stated that it is only a matter of interpretation and application of the collective agreement which in her view did not render the process irregular. She was not aware that at the time of appointment there was a live grievance.
88. Mr. Andries Nkadimeng testified. The summary of his evidence is that he is the District Director for Tshwane South District of the respondent. His duties entail overall management and leadership of the district. Amongst his duties, is also a delegated function to appoint heads of departments at the schools.
89. The appointment of school-based educators is effected in terms of Collective Agreement No.1 of 2021 attached in page 73 of R. The post that is the source of the dispute is the head of department post at Nellmapuis Primary School which was advertised in the GDE vacancy list (page 12 of R) dated 18th of July 2023. He effected an appointment of the post. Before effecting an appointment, he considered several things. Amongst them is the advertisement issued by the district and sifting by the department. The SGB according to the South African Schools Act may appoint the selection panel. The selection panel is not the SGB but a subcommittee of the SGB that performs a specific task on behalf of the SGB. SASA states that the SGB may appoint a member who is not necessarily a member of the SGB. The panel recommends three candidates for appointment. And in doing so they consider scores or scores and deliberations. The SGB then ratifies the recommendation and recommend for appointment, three candidates in order of preference.
90. The file was submitted to Human Resources for verification. Human Resources checked compliance and sent the file to him. He then zoomed into the three recommended candidates for suitability of appointment. If he was not satisfied, he would have been empowered to go beyond the three and appoint any candidate beyond the recommended three. In this case he was satisfied with the recommendations of the SGB. He found the 2nd respondent as the most suitable for appointment and appointed her. For that reason, the applicant could not be appointed. He looked at the experience between the applicant and the 2nd respondent and found that they are both 5 years, however, the 2nd respondent had 4 months acting as the head of department. In terms of the scores, the 2nd respondent’s was higher than the applicant’s
91. He was aware of the discrepancy in scoring. The collective agreement empowers the Director to do checks and balances. In doing so he/she or his assistant may remove the question that caused discrepancy from the total marks of each candidate or give the other candidate total mark for the question. HR Deputy Director preferred the first method. However, the 2nd respondent remained the highest scored candidate.
92. He is aware of the differences in question on page 26 of R and 36 of R. The collective agreement requires that all candidates be asked the same questions as stated in paragraph 12.2 of the collective agreement (page 81 of R). In his view the panel complied with the collective agreement because on the day of the interviews of the 2nd respondent and others, the panel sat and set questions. On the day of the interviews with the applicant, the panel again sat and set questions.
93. In his view, paragraph 12.2 and paragraph 12.6 should be read concurrently. He also considered that the applicant like others was asked the same forms of questions that conform to Blooms Taxonomy. They were both asked lower order and higher order questions. The questions were the same and there was no discrimination. The applicant was not present on the date of the interview. The panel considered the reasons for his absence and gave him an opportunity to attend the interview on a different date.
94. The applicant’s contention that one member of the panel was not an SGB is far-fetched because even if that was to be the case, that will not render the panel unlawful. The SGB has a sole discretion to appoint a panel. In doing so, they may even co-opt nonmembers to serve in the subcommittee. The committee was selected by the SGB, it had parents as majority of members, it was chaired by the member of the SGB and in that regard, it complied with the collective agreement.
95. There was no unfair conduct committed by the 1st respondent. The applicant applied for the post; he was given a fair opportunity to present himself before the panel even if he could not make it in the day of the interview; he was subjected to list of questions that were appropriate and in line with job requirements for the post; at the district after realizing that there was discrepancies, they did due diligence to rectify by removing the marks for the identified question from everyone’s scores; same panel that shortlisted also conducted interviews. The relief sought by the applicant absurd. The applicant cannot be appointed. He was not amongst the three highest ranked; he is not amongst the three recommended by the SGB. In making the appointment, performance; cumulative experience and equity were considered.
96. Under cross-examination by the applicant, he confirmed having stated that he did the due diligence before appointing. He agreed having been aware that the was a grievance and that it was dismissed. He, however, was not aware that there was an appeal. He denied that 1st respondent has effected the appointment while knowing that there was an appeal pending, which was inconsistent with paragraph 17(d) (vii). He argued the appeal did not conform or comply with a collective agreement because the copy of the appeal was not served to the District Director as required by paragraph 17(d) (viii) of the collective agreement. He denied any notion that if his Head Office was aware of the appeal then he should have been informed. He argued that collective agreement specifically states that a copy of the appeal must be submitted to District Director.
97. He agreed that the interview report states that the post was principalship’s post. He however argued that the district applied severity principle and found that the errors in the report were not so severe that it warranted the report to be reverted to school. He insisted that the documents in the bundles of documents were only 20% of the file that was submitted to the district. He stated that the minutes are drafted the same day of any happening, but only typed thereafter. He denied that the questions that were asked to the applicant and their dimension were not the same questions that were asked to the 2nd respondent. He argued that the questions were same types of questions and that they were multidimensional and required the candidate to prove his/her suitability for the head of department post.
98. He agreed to have stated that one of the questions was ignored and in doing so, he was empowered by the collective agreement, paragraph 16.1 (page 16 of R). He agreed that the questions to applicant were not exactly of same wording as the questions that were asked the 2nd respondent. He denied that that was in contradiction with the collective agreement and argued that the collective agreement only refers to the situation were all candidates are present and that if the other candidate is given an opportunity to appear in another day, then the panel must set question on that specific date.
99. He insisted that Cooption is done by the SGB while the Bi-Election is conducted with parents. He agreed that the report states that the members were only nominated. He however argued that all other information proves that after nominations, elections followed. He acknowledged that both invitation and report documents are wrong. He confirmed having not seen the minutes of the grievance hearing. He, however, argued that he received a report and the report stated that the minutes of the parent’s meeting were seen. He denied having been evasive in answering the questions

Arguments

100. The 1st and the 2nd respondent’s closing arguments were submitted and received in writing. The copies of the written closing arguments forms the most important records of the proceedings and are contained in the file. For the brevity of the award, I found it not necessary to restate the same in the award. Save to say that they were studied and fully considered when concluding the award.

2nd Respondent

101. The second Respondent Ms. Cathrine Shihabi chose not to take a stand and lead any viva voce evidence.

ANALYSIS OF EVIDENCE AND ARGUMENT:

As to whether the non-appointment of the applicant amounts to unfair labour practice.

102. The applicant contended that his non-appointment by the 1st Respondent to post number TS83ED1066, Departmental Head post at Nellmapius Primary School amounts to unfair labour practice. He contended that the conduct of the 1st respondent was both procedurally and substantively unfair. The reason the applicant says so is that substantively he was best suitable candidate of all candidates but was rated low because he was not in good terms with some of the members of the SGB. He alleged that as a result of the, the SGB chairperson colluded with other members and the principal to expel a member from the panel and included non-SGB members in the panel to disadvantage him.
103. He also contended that the conduct of the 1st respondent is procedurally unfair because the 1st respondent continued and effected an appointment while there was a pending appeal; that the interview panel was not properly constituted; that the interview panel asked him different questions than the ones that were asked to others candidates and the 2nd respondent.
104. I was therefore required to determine as to whether the 1st respondent’s failure to appoint the applicant was procedurally and substantively unfair. ELRC is a creature of statutes. My duty is only limited by statutes to determine whether the 1st respondent has committed an unfair labour practice as defined in section 186(2) of the Act or any other legislation that defines the employers conduct under their provision as an unfair labour practice. Section 186(2)(a) of the Act defines an Unfair Labour Practice as, “any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee”.
105. In deciding whether a decision not to promote amounts to an unfair labour practice, the general rule according to City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) is to consider whether failure or refusal by the employer to promote the employee was caused by unacceptable, irrelevant or invidious consideration on the part of the employer or; whether the employer’s decision was arbitrary or capricious or unfair; whether the employer failed to apply its mind to the promotion of the employee; whether employer’s decision not to promote was motivated by bad faith; whether employer’s decision not to promote was discriminatory; or whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was taken in a biased manner.
106. It was recorded as common cause that the 1st respondent’s promotion is guided by a collective agreement, Collective Agreement No.1 of 2021: Recruitment and Placement Procedures for Educators at Schools, dated the 27th of September 2021. ELRC also, has a collective agreement, in determining promotion disputes, Collective Agreement Number 3 of 2016, Guidelines on Promotion Arbitration. According to the guidelines, paragraph 31, “an employee who alleges that he is the victim of an unfair labour practices bears an onus to proving the claim on balance of probabilities. It further states that the employee must prove not only the existence of unfair labour practice, but also that it is unfair.”
107. It is common cause that the applicant applied for promotional post. It is also common cause that the applicant was shortlisted and attended the interview. I further considered it common to the parties that the 1st respondent appointed the 2nd respondent to the post. I also considered it as a proven fact that the applicant lodged a grievance, which was dismissed on the 18th of January 2024. It is also common to the parties that grievances and appeals are regulated in terms of Collective Agreement No.1 of 2021: Recruitment and Placement Procedures for Educators at Schools, dated the 27th of September 2021.
108. The applicant has alleged that he lodged an appeal, that the appeal was not as yet determined. He contended that the respondent continued and appointed 2nd respondent despite the existence of the appeal that was still pending. In his evidence, he did not give any evidence or give any explanation as to how the appeal was served. It was, however, canvassed during cross-examination of the witness Mr. Nkadimeng, the District Director. Mr. Nkadimeng denied having been aware of any appeal. He demanded the applicant produce proof that the appeal was served. The applicant could not produce proof and argued that if the appeal was submitted to his Head Office, then it was the responsibility of Head Office to inform the District Director. Mr. Nkadimeng argued that if the appeal was filed, then it did not comply with the provisions of the collective agreement.
109. Paragraph 17.5.1 (d)(vii) provision of the Collective Agreement states, “if the grievant is not satisfied with the decision of the District Director, the grievant has the right to appeal the decision to Directorate: Dispute Management at Head Office within 5 days of been informed of the decision. The copy of the appeal must be filed with the District Director who should submit same together with all information that informed his/her decision to the Directorate: Dispute Management within 5 days of having received the appeal. (viii). The District Director should not implement his/her decision pending the outcome of appeal”
110. The above provisions of the collective agreement specifically state that the copy of the appeal MUST be filed with the District Director. The respondent in closing argued that the applicant’s allegation should be dismissed. For that reason, I find that provision of the collective agreement makes it mandatory for the applicant to file the copy. Having found as such, I effectively find that the applicant has failed to discharge his onus of proof, to prove that the 1st respondent should not have proceeded and appointed the 2nd respondent under the provisions of the collective agreement.
111. I further have considered the applicant’s contention that the 1st respondent committed an unfair act by failing to appoint the applicant to the post while the applicant was the best of all candidates who applied for the post. It is common cause that applicant was not rated amongst the top three in the interviews by the interview panel.
112. I considered the applicant’s evidence that he was the best because he was the only one who was knowledgeable in the SGB, who was giving advice to the SGB and also to the SMT. He also alleged that he is the only one who provided leadership and also participating in the community leadership structures. The respondent’s witness Mr. Msiza denied this version. His evidence is that the applicant was just participating and engaging in discussion like any other member in the SGB. He also argued that the applicant’s version is misleading because he is even continuing to perform badly in his subjects and his daily duties. I considered the applicant’s own admission that he and the 2nd respondent possess same qualification and experience. For that reason, I find that the applicant failed to prove that he was the best of all candidates who applied for the post.
113. Collective Agreement 3 of 2016, provides that where an applicant is unable to prove that he was the best of all the candidates who applied for the job, he or she should generally, at least demonstrate that there was a conduct that denied him/her a fair opportunity to compete for the post or there was a conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and misled the interview panel or the employer.
114. The applicant did not lead or did not provide any evidence that seems to suggest that the 2nd respondent misled the 1st respondent or the interview panel. The applicant contended that he could not have been rated amongst the best because there was a concerted effort amongst the panelists, the SGB and the principal to disadvantage him. This allegation was vehemently denied by the SGB chairperson Mr. Msiza, Ms. Ndhudhuma, the principal.
115. The applicant contended that his allegation was proven by the fact that he was rated even before he appeared before the panel. The allegation was denied by the respondent. The evidence led by Mr. Msiza and Ms. Dhundhuma, collaborated to the effect that the applicant was interviewed on the 31st of October 2023; where the panel reconvened and repeated the same process that they followed on the 28th of October 2023 when interviewing other candidates, including setting interview questions; where the applicant was called into the interview room, given a paper to scribble; the process was explained and interviews were started and concluded in the presence of the trade union observers. I also considered their evidence that they had a discussion and summarized the results after conclusion of the interviews. They both do not understand how the applicant could say that they were not in good relationship with him while they had a good and cordial relationship with the applicant. The applicant did not call any witness to substantiate his allegation. The respondent in closing argued about the effect of failure to call a witness and single witness caution principle. For that reason, I do not find that the applicant has succeeded in proving his allegation that he was rated before even appearing before the panel.
116. The applicant further contended that he was further prejudiced because the interview panel asked him different questions than the ones that were asked to other candidates including the 2nd respondent. That in his view made it impossible to compete fairly with others hence, not rated accordingly. It is contended that the interview panel violated a collective agreement clause 12.6 which states the same questions must be asked of all shortlisted candidates being interviewed for the same post. In his evidence he submitted the comparison of the questions and argued that the questions were not of the same wording and dimensions.
117. It is common cause that the applicant did not attend the interviews on the scheduled date of the 28th of October 2023 when other candidates were interviewed. It is also common cause that the applicant attended the interviews on the 30th of October 2023. The respondent’s evidence given by a witness Mr. Msiza, the chairperson of the SGB and also the interview panel is that on the 28th of October 2023, after concluding interviews with all other candidates, including the 2nd respondent, it came to their attention that the applicant was not available for the interviews. They then sent the scriber to find out about the applicant’s absence and the feedback was that the applicant said he was sick and could not make it to the interviews due to ill-health. They then after discussion, agreed to give the applicant his chance and agreed with him to continue with him on the 30th of October 2023.
118. I also considered his evidence that on the 30th of October 2023, the panel reconvened and repeated the same process that they followed on the 28th of October 2023 when interviewing other candidates, including setting interview questions hence came up with different questions. His arguments was that the questions might have been constructed in different words but were complying with the collective agreement because they were appropriate and relevant to the post. He argued that it would not have been fair to other candidates to ask the applicant exactly the same questions that were asked of other candidates on the 28th of October 2023.
119. The respondent’s witness Ms. Chauke argued that the question as more of interpretation and that the applicant must not read one word in isolation of others. She argued that the clause when read with clause 12.2 which says that questions must be set on the day, means that when the panel reconvened on the 30th of October 2023, they were bound to set new questions. Mr. Nkadimeng also denied that that was in contradiction of the collective agreement and argued that the collective agreement only refers to the situation were all candidates are present and that if the other candidate is given an opportunity to appear in another day, then the panel must set question on that specific date as required by the collective agreement.
120. I also considered the provisions of Collective Agreement Number 3 of 2016. Clause states, “To the extent that these guidelines advance an interpretation of law, it is the policy of the ELRC and should be applied unless the arbitrator has good reason for favouring a different interpretation”. In its clause 5, it further states that commissioners must apply interpretation law in accordance with judgements that are binding at present. The rules of interpretation favours a contextual interpretation approach where the word is read and interpreted in context with other words, the purpose and the circumstances.
121. In the matter at hand, the dispute is about alleged unfair labour practice: promotion. The collective agreement does not require me to pronounce what in my view the respondent was supposed to have done, but whether what the employer did was fair. I considered the respondent’s evidence that had the same question be brought to the applicant, it would not have been fair to other candidates. I also considered the applicant’s evidence that the panel only came with new set of questions because they wanted to disadvantage him. I also considered the respondent’s witnesses evidence given by Mr. Msiza and Mr. Ndhundhuma that if that was the objective of the panel, the panel would have, after seeing that he was absent, simply disqualified and not gave him a chance. It is for that reason that I find it improbable that the panel set questions in order to disadvantage the applicant.
122. The applicant further contended that the questions that were asked of the 2nd respondent were questions that are asked level one educators not the departmental head. The respondent’s witness disputed the allegation. The evidence given by Mr. Nkadimeng dealt intensively with the principles of questioning and argued that the questions that were asked to the applicant and the others were conforming to the rules as they were eliciting all levels of responses. It was, however, not the applicant’s contention that the questions that he was asked were unfair, irrelevant and improper. For that reason, I find that the issues he raised are immaterial to the applicant’s dispute.
123. The applicant further contended that the conduct of the 1st respondent was unfair because the total marks that he was rated for were not the same as the applicant was rated out of 80 marks while the 2nd respondent and others were rated out of 90. I considered the 1st respondent’s evidence given by Ms. Nkuna who saw the discrepancy. Her evidence was that what they normally do in the district, if they find such discrepancies, they do not return the file to the school apply some means to cure discrepancy. I considered her evidence that she removed question 5 (five), a question which was a cause of discrepancy from all candidates mark sheet and recalculated the total score for all candidates.
124. I further considered her evidence that after calculating there were no major changes in terms of the rankings of the candidates; that she then wrote a note and took the file to the attention of the District Director and attached her script of new scores. I considered Mr. Nkadimeng’s evidence that the file was not reverted back to school for re doing but was then taken to the District Director for finalization and appointment. I also considered that after realizing discrepancy they applied severity principle and found that the errors in the report were not so severe that it warranted the report to be reverted to school. The applicant did not challenge the evidence successfully and only argued that it should be rejected as such documents were not produced for the arbitration. I considered Mr. Nkadimeng that what is in the bundles of documents was only 20% of the file and therefore not everything could have been brought to arbitration. The respondent argued that such documents could not have been contained in the bundle because it was not brought as a dispute prior to arbitration or in the pre-arb meeting. The duty to prove was with the applicant. However considering the evidence, I find that the 1st respondent’s removal of a question that caused discrepance was a fair act.
125. The applicant further contended that the act or omission by the 1st respondent is unfair because the panel was not properly constituted. I considered his evidence the chairperson of the SGB removed from the panel legitimate members of the SGB, Mr. Dladla and selected Ms. Mavuso who was a coopted member whose term of cooption had also lapsed. I considered the respondent’s evidence given by Mr. Msiza that Ms. Mavuso was a member of the SGB, who was elected by the parents on the 24th of May 2023. The applicant contended that the meeting of the 24th of May 2023, only coopted Ms. Mavuso and that is evidenced from the invitation to the meeting and the feedback that was sent to parents.
126. I considered the respondent’s evidence given by Mr. Makondo that on the 24th of May 2025, he visited Nellmapius Primary School, that upon arrival, he was informed by the principal that a parents meeting had been called in order to coopt a parent to fill the vacancy that arose in the SGB. As that is his responsibility to support the SGB, he took an advantage and attended the parents meeting. I considered his evidence that the person who was supposed to facilitate cooption was the principal of Nellmapius Secondary School and because he was not in attendance, they requested him to assist. I considered his evidence that after explaining to the parents that if they coopted a member, then they will be required to call another meeting for the Bi-Election in 90 days’ time; that the parents resolved to have a meeting proceeding as a Bi-Election meeting.
127. I also considered Mr. Nkadimeng’s evidence that the cooption is done by the SGB while Bi-Election is done before the parents. I also considered his evidence that in Bi-Election there would be nominations, and if nominations are more than the vacancies to be filled then, there would be election or voting.
128. I considered Mr. Makondo’s evidence that he presided over the meeting, that Bi-Elections were held and Ms. Mavuso was duly elected as a member of the SGB. This evidence was corroborated by Mr. Msiza and Ms. Ndhundhuma. The applicant disputed the evidence and argued that the proposition should be rejected as the respondent had failed to provide the minutes of the meeting. The respondent argued that the applicant was not in the meeting, he failed to call witnesses to testify contrary to the witnesses of the respondent. I also considered that the onus of proof was on the applicant. For that reason, it was applicant’s duty to get the minutes or to request an order that compels the respondent to produce the minutes even before the arbitration proceedings started.
129. I also considered the respondent’s evidence given by Mr. Nkadimeng that even if Ms. Mavuso were found to be not a member of the SGB, that would not have invalidated her participation in the interview panel because the panel is not the SGB but the subcommittee of the SGB; that SGB can coopt any person to serve its subcommittee. For that reason, I find that the applicant failed to discharge his onus to prove that Ms. Mavuso was not an SGB member in good standing. Having found as such, I effectively find that the applicant has failed to prove that the interview panel was not properly constituted.
130. The Guidelines support the view that held In Nooman v Safety and Security Bargaining Council and others (2012) 33 ILJ 2597 (LAC) that states that the employee must at least demonstrate that there was a conduct that denied him/her a fair opportunity to compete for the post or conduct that was arbitrary or motivated by an unreasonable reason or that the successful candidate was dishonest and misled the interview panel or employer. The applicant confirmed that he does not suggest that there was an element of corruption in appointment of the 2nd Respondent therefore this does not apply.
131. The Guidelines also support the view that was held in Kimberly Junior School v The Head of Department Northern Cape Education Department (2009) 4 ALL SA 135 (SCA) where it was held that a recommendation by the SGB is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation, the promotion is ultra vires and unlawful. The applicant was not recommended by the SGB for appointment.
132. Having found as above, I do not find that there existed any unfair labour practice as envisaged by the Act. The respondent’s act/omission of not appointing the applicant to a promotional post does not amount to unfair labour practice. For that reason, the applicant’s referral stands to be dismissed.

AWARD

133. The 1st Respondent, the Department of Education Gauteng, did not commit any unfair labour practice against the Applicant, William Ngwako Sodi.
134. The applicant’s referral is hereby dismissed.

Ramadimala Jacky Mateta

Sector: Education