Case Number: ELRC495-25/26NW
Commissioner: Simon Beesnaar
Date of Award: 31 August 2026

In the ARBITRATION between

Mosella Patrick Rasutha
(Union/Applicant)

And

Department of Education – NW
(Respondent)

Union/Applicant’s representative: Mr Keenan Els – Legal Rep (LOVIUS BLOCK INC)
Union/Applicant’s address:



Telephone:
Telefax:
E-mail:

Respondent’s representative: Ms. Boitumelo Phuswane – Manager: LRs
Respondent’s address:



Telephone:
Telefax:
E-mail:

PARTICULARS OF THE HEARING AND REPRESENTATION

1. This is the award in the arbitration matter between Mosella Patrick Rasutha, the Applicant and the North West Department of Education, the 1st Respondent. Mr. Godfrey Kgomogadi was joined as the 2nd Respondent.
2. The referral is in terms of section 186(2) (a) of the Labour Relations Act, 66 of 1995 as amended (herein after referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.
3. The arbitration was scheduled virtually on 6 February 2026. Due to connection problems, and after the parties’ request, the matter was rescheduled to proceed physically on 20 April 2026, 5 June 2026, 13 August 2026 and concluded on 14 August 2026 at Christiana.
4. Further that the parties requested to submit the closing Heads of Arguments (HOAs) in writing no later than 24 August 2026.
5. The Applicant was present and he was represented legally by Mr. Keenan Els from LOVIUS BLOCK ATTORNEYS INC. The 1st Respondent was represented by Ms. Boitumelo Phuswane in her capacity as Manager – Labour Relations. The 2nd Respondent was represented by his Union Representative Mr. Tlhomelang Molebatsi from SADTU (Union Rep).
6. The parties submitted into evidence bundle of documents which were accepted as what they purported to be. The Applicant’s bundle is referred to herein after as Annexures “A1-66” and the Respondent’s bundle as Annexure “B1-49”.
7. The proceedings were conducted in English and were manually and digitally recorded.

ISSUE TO BE DECIDED
8. I must determine whether the 1st Respondent committed unfair labour practice by not promoting the applicant to an advertised post of – Departmental Head (DH) at Lerona Secondary School.

9. It must further be determined whether the decision not appoint him was substantively and procedurally unfair. On the substantive challenge, it must be determined whether the applicant was the best and suitably qualified for appointment to the post than the 2nd Respondent.
10. The procedural challenge is whether the 1st Respondent failed to comply with the provisions of Personnel Administrative Measures (PAM) when the Interview Panel/Committee was constituted. BACKGROUND TO THE DISPUTE
11. The applicant has 19 years of service as Post Level 1 Educator at Lerona Secondary School. He earns R 25 000.00 per month. On 16 April 2025, DH Posts level 2 were advertised for Lerona Secondary as per Circular 9/2025.
12. The applicant and the 2nd Respondent applied for – post number: DHRSM/2025/63 (Technology, Creative Arts & Life Orientation) (see B21). They were both shortlisted and interviewed by the Panel on 3 July 2025.
13. In or around August 2025 he became aware that the 2nd Respondent has been appointed to that post. Aggrieved by the decision of the 1st Respondent, in appointing the 2nd Respondent, he lodged a grievance which failed to yield expected result. He then referred the dispute to the Council for conciliation.
14. Conciliation was scheduled on 26 August 2025 and the dispute remained unresolved. The applicant requested that the dispute be resolved through arbitration.
15. The relief sought by the applicant is that the appointment of the 2nd Respondent be set aside and he must be appointed retrospectively to the said post. Alternatively, compensation or protected promotion.

PRELIMINARY ISSUE/S

16. At the outset of the proceedings, there was an application for postponement by the applicant’s Legal Rep, Mr Keenan Els.

Applicant’s submissions –

17. Mr Els submitted that he took over form the applicant’s initial Legal Rep, Mr. Kramer who withdrew as the applicant’s Legal Rep. He took over just a day before the arbitration proceedings, and indicated that he did not have any background on the matter. He was appointed by Legal Wise yesterday to represent the applicant.
18. He submitted that the applicant bears the onus to prove the unfair conduct on the part of the 1st Respondent. Should arbitration proceed, the applicant would be severely prejudiced. He maintained that the application was not to frustrate the proceedings, but to give the applicant adequate time to consult properly with his new Legal Rep.
19. It was further his submission that the respondent had enough resources to ameliorate the effects of postponement and as a result, would suffer no prejudice.

Respondent’s submissions –

20. The Respondent vehemently opposed the application for postponement. Ms. Phuswane submitted that the matter has been on the roll with few postponements already for some reason beyond control, like poor network connection. She countered the applicant’s argument that the respondent had enough resources that they are financially constraint in terms of travels.
21. She further submitted that the Department has placed a moratorium on official trips and that made it difficult to on her part to travel more than 400 KMs each time to attend to this matter. She maintained that date as scheduled by the Council, was after the parties agreed and made a proposal to the Council.
22. She further argued that the parties were notified way in advance and that it was unacceptable for the applicant to bring such an application with no urgency.

ANALYSIS OF THE SUBMISSIONS

23. In determining an application for postponement, I considered Rule 23 of the Rules for the Conduct of Proceedings before the ELRC (the Council Rules). The granting of an application for postponement is not a right. It is an indulgence granted in the exercise of a judicial discretion (see Carephone (Pty) Ltd v Marcus NO and others (JA 52/98) [1998] ZALAC 11; (1998) 19 ILJ 1425 (LAC).
24. It is important to note that arbitration proceedings must be structured to deal with the dispute fairly and quickly. Further that the ability to make costs orders to counter prejudice in good faith postponements is severely restricted. The prejudice ordinarily constitutes the dominant component of the total structure in terms of which the discretion will be exercised.
25. After listening to the submissions made by the parties, I am of the considered view that the prejudice to be suffered by the respondent outweighs that of the applicant. This matter as the 1st Respondent submitted has been on the roll since February 2026 as indicated in paragraph 3 above.
26. In the circumstances, I make a ruling here after –

RULING

27. An application for postponement is not granted.

SUMMARY OF EVIDENCE AND ARGUMENT
Applicant’s evidence –
28. Mr. Mosella Patrick Rasutha stated that he had 19 years of experience as an Educator. He was disputing the appointment of the 2nd Respondent because he considered himself as the best possible candidate. Further that he was disputing the procedure that was followed in the appointment of the 2nd Respondent.

29. He maintained that he was the best qualified Educator, in possession of a Bachelor’s degree in Education, Honors in Education Management, Post Graduate Certificate in Education, Bachelor’s Degree in Commerce (BCom) and three (3) years’ experience in Management. A18 is a copy of his Honor’s certificate obtained in 2016 from the Central University of Technology (CUT). A19 a copy of his Post Graduate Certificate in Education obtained in 2010 from CUT, while A20 (BCom) obtained in 2009. He confirmed his registration with the South African Council for Educators (see A24).
30. He applied for a DH, post level 2 after it was advertised as per Circular 9/2025 (B12). The minimum requirements as per B13 paragraph 4 were read into the records. He maintained that he met all the requirements of the advertised post and he submitted certified copies of qualifications and relevant documents. He was shortlisted and interviewed together with the 2nd Respondent, Messrs. Olifant, Motlodi and Madi as in A54.
31. He was interviewed by Mr Chweu, Mila, Mokgosi and Khonkhobe. Mr Lazenby was also present as the resource person. The Chairperson of the SGB, Mr. Gaanewe and other two members were also present. The Acting School Principal, Mr Nguta was there as an observer. After the interview he was given a form to complete. While busy completing the form, he saw the Acting School principal doing something irregular. He approached the Panel and requested the candidates’ score sheets. He failed to understand why he was doing that but he did not ask and he left.
32. They then waited until the appointment was made around August 2025. The 2nd Respondent was appointed and he disputed his appointment. He sent a letter to the School Principal and the Chairperson of the SGB. He maintained that he exceeded the post requirements and was the most suitable candidate for the post.
33. He stated that he knew the incumbent had only one qualification and he was his teacher at some point. He did not get a response from the School Principal and the SGB. The matter was then escalated to the District Director but remained unresolved. Based on the irregularities and the conduct of the School Principal, the information on the 2nd Respondent’s CV it was his contention that they failed to comply with the provisions of the PAM document, with specific reference to clauses B.5.3.1 as well as B.5.3.2 and B.5.3.4.
34. He maintained there was conflict of interest on the part of certain Panel members, bias and unfair conduct. He contended that Mr Nguta was an observer and should not have interfered by requesting the score sheets amongst others. On the substantive challenge, he maintained that he was better qualified than the 2nd Respondent. Further that he had more years of service as compared to him.
35. Under cross examination he conceded that the 2nd Respondent met the requirements of the advertised post in terms of qualifications and experience. After the interview he was ranked number 3 while the 2nd Respondent was number 1. B32 is the Interview Attendance Register that shows that Nguta was the Resource person and not Lazenby. He stated that among his responsibilities was Assessment Centre Coordinator, equivalent to those of a Deputy Principal.

Respondent’s evidence –
36. Mr. Eddie Khonkhobe participated as the Chairperson of the Panel that conducted the interviews. He submitted that there were other Panel members like observers and resource person. He submitted further that Union Representatives from SADTU and other Unions assumed the role as observers. The School Principal, Mr. Nguta was the resource person as per B32 (Interview Register). He supplied them with the Interview materials needed.

37. He submitted that the Committee was well constituted and they complied with PAM. During the process of shortlisting they set the criteria according to the post requirements. The applicants were interviewed according to set criteria. The Panel members scored them individually and at the end, scores were consolidated. The score sheets were handed over to the resource person. Thereafter were signed by the SGB members and their work was the concluded.
38. B30 was the final selection sheet, where the candidates are listed according to their performance and their scores indicated. The 2nd Respondent was the best performing candidate and the applicant obtained third position. They were scored according to their response to interview questions and he was of the view that they were fairly scored by each Panel member independently. He concluded that all candidates were asked the same questions used to determine their scores.

ANALYSIS OF EVIDENCE AND ARGUMENT
39. This is a referral in terms of section 186 (2) (a) of the LRA. The relief sought by the applicant is that the respondent be ordered to promote him or appointment to the DH post as advertised.

40. In determining the dispute between the parties, I considered the provisions of the LRA and other relevant statutory/regulatory provisions like the Departmental Policy: Recruitment and Selection Policy, Personnel Administration Measures (PAM) of 2022 among others and arrived at the decision here after.
41. The LRA entitles employees to institute action against an employer for what is termed ‘unfair labour practice’ in terms of section 186 thereof. Section 185 of the LRA states that “every employee has the right not to be (b) subjected to unfair labour practice”.
42. Section 186(2) provides that;
    ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –

(a). unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

43. In unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee to prove that he/she is a suitable and better candidate for the position in question. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT (handed down on 9 May 2018) the Court emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the employee to demonstrate that the failure to promote was unfair, the employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.
44. The applicant’s case is that he was subjected to an unfair labour practice by the 1st Respondent’s failure to appoint him to an advertised post – DH, PL2 post. He disputes both the substantive and procedural fairness in the decision of the 1st Respondent to appoint the 2nd Respondent in that post. He maintains that he is the best and suitably qualified in terms of qualifications and experience. Further that the procedure followed to appoint / constitute the Interview Panel/Committee was not in compliance with the provisions of PAM and that the conduct of some Panel member/s questionable.
45. It is by now settled law that the LRA does not create a right to be promoted unless some agreement or statutory law is giving the employee this right. The employer has an obligation in terms of section 186(2) of the LRA to act fairly towards the employee in the selection and promotion process, but apart from that, it is the prerogative of the employer whom he intends to appoint and furthermore, the employer’s obligations to provide the justifications for such appointments made.
46. While the applicant stated that he exceeded the requirements of the post and was the best suitable candidate for the post, he conceded under cross examination that the 2nd Respondent also met the minimum requirements of the post. Mr Khonkhobe stated under oath that all candidates were asked the same questions and scored independently by Panel members. The 2nd Respondent scored the highest and the applicant obtained third position. That is undisputed as per B30. That was the only criterion that was used to determine the best performing candidate.
47. The candidate who scores the most points must be recommended by the panel and this is what happened. Good labour relations requires an employer to be held to this and failure to comply may result in substantive unfairness. I am therefore not persuaded by the applicant’s submission that the appointment of the 2nd Respondent is substantively unfair.
48. The procedural challenge is based on the applicant’s submission that the Acting School Principal, Mr Nguta interfered with the process when he collected the score sheets after interviews. While the applicant submitted that Nguta was an observer, Mr Khonkhobe stated that he was the resource person. The Interview Register (B32) confirms that Nguta was the resource person and not Lazenby as submitted by the applicant. While he submitted that there was non-compliance with the provisions of PAM by Panel members, there was no substance in support of the allegations.
49. Employees often believe that because they have been employed by the company or have valuable years of experience in the job that once a position becomes vacant, they are entitled to be promoted or that they are entitled to receive preferential treatment above other candidates seeking the promotion.
50. An employer may promote or appoint individuals as it deems fit. The employer’s managerial prerogative relates to the ability and choice a manager or an employer can make to appoint an employee of his or its choice. The term “prerogative” denotes that the person holding the prerogative has a right that others – employee or job applicant – does not have. This right is weighed up against the question as to whether a job applicant has a right to be appointed in a position and can s/he therefore challenge the managerial prerogative of the employer or Manager and demand to be appointed.
51. The right to appoint belongs to the employer. However this right is not absolute. The employer must comply with the principles of fairness and can also not contravene legislation. The right is also limited by the right of the job applicant not to be subjected to unfair labour practice.
52. It should be noted that because it remains the prerogative of the employer to appoint and promote who s/he sees fit for the position at hand, the fact that another employee is more qualified does not constitute an unfair labour practice. The law requires the employee to show the existence of the conduct or decision complained of.
53. I will accept that the applicant has excellent qualifications and experience. However, the fact that an employee alleges that he was the most qualified candidate is not a basis for finding that the Respondent in fact acted unfairly by promoting another candidate. In fact possession of superior qualifications is not in itself sufficient to lay a basis for unfair labour practice claim by an unsuccessful candidate when the successful candidate satisfies the minimum requirements for the position.
54. The appointment or promotion of an inferior weaker candidate does not necessarily mean that the respondent has acted unfairly. In general the employer has the right to appoint or promote an employee whom he considers the best or the most suitable candidate.
55. Arbitrators should be reluctant to interfere with an employer’s choice in promoting a specific candidate. The relative strength and weakness of candidates for a position cannot themselves prove that an employer committed an unfair labour practice by appointing or promoting an inferior weaker candidate, provided that the employer can provide a good reason for preferring the inferior weaker candidate.
56. I reiterate that I find nothing irrational, capricious or arbitrary in the appointment of the 2nd Respondent. It was the prerogative of the employer to select the candidate which best suited the needs of the employer, and in this case, the post profile. Besides even if the applicant was a stronger candidate than the 2nd Respondent when one compares their qualifications and experience, this would still not prove that an unfair labour practice was committed when the 2nd Respondent and not the Applicant was appointed because as a legal concept unfairness cannot exists in abstraction.
57. The discretion to select candidates for promotion is a wide discretion which had been entrusted to the Panel. As long as the discretion of the appointing authority is exercised in good faith in a rational and reasonable manner, it is not permissible for arbitrators to intervene.
58. I have no doubt that the applicant is a good employee who is passionate about his profession. That is commendable. He should however accept that he was not the best and suitable candidate for this particular position and for that reason he was not appointed. On the flip side, the finding that a failure to promote was unfair must be a rational one, i.e. it must be supported by facts.
59. It is not enough to merely show that there is a breach of protocol or procedures in the recruitment and selection process when the outcome is not favorable in the applicant’s point of view. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him. That was not established. He must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
60. In the circumstances, I find that in exercising this discretion, there is no factual basis to suggest that there was capricious, irrational, or arbitrary conduct on the part of the 1st Respondent and I am accordingly not permitted to interfere with their decision. It could not equally be demonstrated that there was a contravention of their Recruitment and Selection Policy or PAM as alleged by the Applicant.
61. I have considered both the Applicant and the Respondent’s testimony and conclude that while he submitted that the conduct/decision of the 1st Respondent in appointing the 2nd Respondent as DH – PL2 is unfair labour practice, that allegation has not been substantiated. I am not persuaded that the conduct of the Respondent is tantamount to unfair labour practice as envisaged in section 186(2)(a) of the LRA.
62. Having regard to the full conspectus of all relevant facts and circumstances of the matter, I make the award here after –

AWARD

63. No unfair conduct or any other legally recognized ground to justify interference with the 1st Respondent’s decision was proved with regard to the process followed during shortlisting, interviewing and filling of the post: DH PL2 at Lerona Secondary School.
64. The appointment of the 2nd Respondent in the aforesaid position and the decision of the 1st Respondent to make the appointment is not unfair labour practice as envisaged in Section 186(2)(a) of the LRA.

SM. BEESNAAR
ELRC ARBITRATOR