03 December 2025 -ELRC290-25/26KZN

Commissioner: VEESLA SONI
Case No.: ELRC290-25/26KZN Date of Award: 03 DECEMBER 2025

In the ARBITRATION between:

SADTU OBO BONGUMEZI SANDILE MSOMI APPLICANT
and

THE DEPARTMENT OF EDUCATION: KWAZULU NATAL FIRST RESPONDENT
MR S N GAZU SECOND RESPONDENT

Union/Applicant’s representative: SADTU: Siyanda Mthimkhulu
Durban

First Respondent’s representative: DOE – Mr Itumeleng Makhooe
Durban

Second Respondent: SADTU – Mr Lendl Gounden
Appointee S N Gazu

DETAILS OF HEARING AND REPRESENTATION

The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 182 (2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 15 September 2025.
The Applicant, Bongumezi Sandile Msomi was present and was represented Mr Siyanda Mthimkhulu from SADTU. The First Respondent was represented by Mr Itumeleng Makhooe, the Department of Education in Kwa Zulu Natal. The Second Respondent, Mr S N Gazu, was represented by SADTU, Mr Lendl Gounden and Nolan Pillay.
The proceedings were heard virtually on 15 September 2025. The matter proceeded and remained part heard. The matter was scheduled on a few occasions and was finalized on 19 November 2025.

ISSUE TO BE DECIDED

The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of promotion, when they failed to shortlist the Applicant.

BACKGROUND

The background of the matter was that the Respondent advertised a position of a Deputy Principal’s post, at Siphesihle Secondary School, for which the Applicant applied. The post was advertised in terms of HRM 20 of 2024, post number 685, for which the 2nd Respondent, Mr S N Gazu applied and was appointed. The Applicant challenged the decision by the Department not to shortlist the Applicant for the post.
It was common cause that both the Applicant and the 2nd Respondent emanated from the same school, being Siphesihle Secondary. The Applicant was in post level 2 but acted in post level 3. The 2nd Respondent was in post level 1, acting in post level 2. The union observers were present during the shortlisting process. Departmental resource persons were appointed to oversee the process and were present throughout the proceedings to ensure adherence to HRM 20. They declared the process to be free and fair.

APPLICANT’S CASE

Opening statement: Mr Mthimkhulu submitted that the 1st Respondent committed an unfair labour practice, as the Applicant acted in the post and was not shortlisted. It was submitted that the process was challenged and not the individual. The relief requested was the setting aside of the process from the stage of shortlisting.
Applicant: testified that the resource person and SGB members were biased in favour of the 2nd Respondent. The SGB members pre-empted the outcome prior to the post being finalized. The Applicant believed that a decision to appoint was made prior to the finalization of the posts. The Applicant was not shortlisted for the post, but he had met all the requirements. He said he had an acting appointment for the post from 1 January to 31 December 2025. The appointment of the 2nd Respondent resulted in a termination of his acting period and acting allowance.
Grace Mbhele: testified that she was the departmental head at Siphesihle Secondary School. She started at the said school in 2011. She applied for the post of deputy principal and attended the interview. The resource person was the principal, Mr N R Gumede. She said that at the time of the interview she was not welcomed by the IC chairperson, but rather by the principal, who sat as the resource person. He was also the one that asked the questions. She claimed that it was irregular. She confirmed that the scoring was done by three SGB members. There were also two SADTU representatives present.
Mbhele stated that the principal was driven by the 2nd Respondent. He drove the principal to the school, meetings and weekend school functions. The 2nd Respondent also was like an administrator to the principal. The work was undertaken by the 2nd Respondent as the principal was unable to attend to his own administrative work. The principal should have recused himself from the process as he had a direct interest with the 2nd Respondent.

1st RESPONDENT’S CASE

11.Opening statement: Mr Makhooe submitted that the 1st Respondent followed the procedure. The onus rested on the Applicant, and it was their duty to discharge same.

Mr N Gumede: was the principal at Siphesihle Secondary. He knew the Applicant who was the Departmental Head for Commerce. The 2nd Respondent was the deputy principal. Gumede said he was appointed as the resource person for the post. The Applicant and the 2nd Respondent applied for the post. Both were shortlisted. He confirmed that he was not biased in any way or form. His role was that of a resource person only. Gumede explained that from the time he was appointed as a principal he conveyed to his staff that his work ethics was an ‘open door’ policy. He denied that he was close to any one staff member. He explained that he was unfit to drive as he had two hip replacements. This resulted in him either travelling via Uber or taking lifts with colleagues, especially the 2nd Respondent. It was convenient to travel with the 2nd Respondent as both resided in Ntuzuma. They both resided in the same area. In this regard he contributed to the petrol for the 2nd Respondent.
Gumede said he obtained assistance from other colleagues who transported him to work. He travelled to meetings either via Uber or with colleagues, and not just the 2nd Respondent.

14.Gumede said that the Applicant acted for more than 12 months. He explained that there were two posts. In the first one the Applicant was automatically shortlisted for the post, based on the period of his acting. He said it was untrue that the Applicant was not shortlisted. He explained that the questions were prepared by the IC. The members delegated to score could not read the questions as they had to pay attention to the questions and answers. The IC chairperson had gone through a ritual and could not ask the questions. As such he read the questions, which he confirmed were prepared by the IC. Gumede said that organized labour was present. He further confirmed that SADTU was present. There were no objections or concerns raised about the process.

 2nd RESPONDENT

S N Gazu, the 2nd Respondent: he started in 2014 and averred that the accusation of being a friend of the principal was untrue and unfounded. He said his service to the school and colleagues was based on passion. He said that he was good with computers and assisted with the administrative work. This was done even prior to Gumede’ s appointment (as principal). He also assisted the previous principal.
Gazu added that he assisted other colleagues and they drove together to work. The principal, Gumede, was residing in an area which was on his way to work, hence he travelled with him, and drove him to school. Gumede was ill, therefore he assisted by driving him to school and to certain school functions. He said he did the same with Mbhele and they travelled together at times. It was not a close friendship but rather common courtesy among colleagues.

ANALYSIS OF EVIDENCE AND ARGUMENT

This dispute is referred to as an unfair labour practice. An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
The Applicant is required to do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. This goes beyond mere unhappiness or a perception of unfairness. The issue of fairness depends on the circumstances of a particular case and essentially involves a value judgement.
The overall test is one of fairness which was confirmed in the case under discussion. The Court in Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC) found that that a failure to promote which had no direct consequences for other citizens were not administrative action subject to the review test of unreasonableness:
“The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…In this matter the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”

20.The 1st Respondent advertised the position of Deputy Principal in terms of Circular, HRM 20/2024, post number 685. The Applicant applied and was not shortlisted. He claimed that he met the essential requirements and the 1st Respondent committed unfair labour practice by not shortlisting him.

21.The Applicant sought the setting aside the appointment of the 2nd Respondent and requested for the process to start afresh from shortlisting. The Applicant challenged the procedures that were followed in dealing with the shortlisting.

All parties delivered written closing arguments by 27 November 2025. For the sake of brevity, I have not restated their submissions, but my analysis hereunder addressed all arguments raised.
An unfair labour practice dispute as per the provisions of section 186(2)(a),191(5)(a)(iv) and 193(4) of the Labour Relations Act give practical effect to the constitutional right to fair labour practices set out in section 23(1) of the Constitution for the Republic of South Africa, 1996. The Applicant had to demonstrate that had it not been for the unfair conduct of the 1st Respondent he would have been shortlisted and appointed to the post. The onus rested on the Applicant to establish that the conduct of the 1st Respondent denied him a fair opportunity to compete for a post, alternatively that the conduct was arbitrary or motivated by an unacceptable reason.

24.The arbitration of a promotion dispute does not entail a hearing de novo, but an assessment of the employer’s decision. I turn to the test as laid out in Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC), which is a landmark case in South African labour law. The Constitutional Court held that the test in promotion disputes, was that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.

The Applicant argued that the resource person and SGB members were biased in favour of the 2nd Respondent. He believed that the SGB members pre-empted the outcome prior to the post being finalized and, in this regard, he claimed that there were voice notes from SGB members. In this case the Applicant was not shortlisted for the post, but he met all the requirements as he was acting in the post from 1 January to 31 December 2025. The Applicant also claimed that the 2nd Respondent, on occasions, drove the principal, which rendered his role, as a resource person, bias. Aside from the fact, which was conceded by the 2nd Respondent, that at times he transported the principal, there was no other evidence of bias. I find such an allegation unsubstantiated.
Under cross examination it was put to the Applicant that he was shortlisted for the post in which he acted in, being Post 693, relating to curriculum. He was not shortlisted for the current post, Post 685, as it related to administration. The Applicant maintained that there was never a distinction between the two posts, hence he was unaware of the division in the posts of deputy principal. The Applicant said that even during his acting period, no distinction was drawn.
The 1st Respondent’s case was that there were two different criteria’s drafted by the IC, one for administration and one for curriculum. The Applicant was unable to refute this version. The Labour Appeal Court in Noonan v SSSBC and others [2012] 33 ILJ 2597 (LAC) held that employees have the right to a fair opportunity to compete for a position but do not have an automatic right to promotion. The Applicant had been given the opportunity to apply for the position. His exclusion from the interview process was not unfair, given that he did not meet the specific requirements for that role.
Mbhele was the head of department at the same School, and she was a witness in favour of the Applicant. She applied for post 685 and was shortlisted and interviewed. The 2nd Respondent was appointed in this post. She stated that the principal and the 2nd Respondent had a relationship as he (2nd Respondent) drove the principal to school, meetings and school functions. The 2nd Respondent also attended to the reports and all administrative work for the principal. She believed that, based on their close relationship, the principal should have excused himself from the interview. She stated that when the post was advertised, 693 and 685, there was no mention whether it was for administrative or curriculum. She maintained that the Applicant should have been shortlisted for both posts. Mbhele confirmed under cross examination that due to the ill health of the principal, he was driven by the 2nd Respondent. Clearly there were justifiable reasons why the principal travelled with the 2nd Respondent.
Mbhele confirmed under cross examination that she had no evidence that the 2nd Respondent was scored higher. She also had no evidence that the principal influenced the SGB to appoint the 2nd Respondent. Her version was based on opinion, and it was conjecture as she categorically stated that she was better than the 2nd Respondent. I find there was some bitterness. In this regard I refer to Department of Rural Development and Agrarian Reform v General Public Service Sectoral Bargaining Council and Others [2020] 4 BLLR 353 (LAC), where the employee referred an unfair labour practice dispute relating to a promotion. The LAC held that when considering such disputes, the arbitrator should, in general, show some deference to the decision made by the employer and should exercise caution when ordering the appointment of an employee into a promotion position because there is no right to a promotion. However, the arbitrator may interfere in circumstances where an employer acted capriciously, arbitrarily or in bad faith. In this case the Applicant was not shortlisted as he did not possess the requisite characteristic for the post, being the administrative function.
Mbhele stated that the principal “needed to thank Gazu as he drove him around”. The appointment of the 2nd Respondent was not as a result of some favorable treatment by the principal. Mbhele added that the principal influenced the IC and SGB members to appoint the 2nd Respondent. Her evidence was based on opinion and there was no evidence to demonstrate unfairness and bias.
The 2nd Respondent was an honest and articulate witness. He explained, with sincerity, that he acted with compassion and dedication. He admitted that he drove the principal, Gumede. He said he had nothing to conceal. His conduct was based on compassion and commitment. This was done with other colleagues and with the previous principal. His appointment had nothing to do with any alleged relationship with the principal. The fact that he drove the principal did not mean that they were personal friends. In this regard he said that he also drove Mbhele.
The 2nd Respondent confirmed that he applied for both posts and affirmed that he was only shortlisted for post 685. He mentioned that during the advertisement and appointment process the principal did not travel with him. He believed the reason for same, was because the principal wanted to avoid the very same notion of bias. It was common cause the principal was ill and had an issue with his leg. Prior to travelling with the 2nd Respondent, he travelled with another colleague. The 2nd Respondent said that he was not the only person that drove the principal. The entire staff assisted and drove him.
Gumede was the principal of the school. He appeared to be an honest and forthright witness. He gave his evidence in a straightforward manner and remained consistent under cross examination. He explained that he had two hip replacements and this resulted in his inability to drive. That was the background as to why he was unable to drive. In this matter he was the resource person and Gumede explained that he did not have a special relation with the 2nd Respondent. He confirmed that the Applicant was the Departmental Head and the 2nd Respondent was the deputy principal.
Gumede said that both the Applicant and the 2nd Respondent applied for the post and both were shortlisted. There were two posts, one was for curriculum and the other for administration. Gumede confirmed that the Applicant was shortlisted only for 693.
Gumede emphatically denied that he was biased. His role was that of a resource person. Gumede denied that he was particularly close to only the 2nd Respondent. It was undisputed that he was unfit to drive as he had two hip replacements. This resulted in him either travelling via Uber or taking lifts with colleagues, especially the 2nd Respondent. In this regard it was uncontested that the 2nd Respondent and Gumede resided in Ntuzuma. It would have been convenient for the 2nd Respondent to assist Gumede as both resided in the same area. It was not disputed that Gumede contributed to the petrol for the 2nd Respondent.
Gumede also stated that he obtained assistance from other colleagues who transported him to work. This too was not refuted. Gumede confirmed the Applicant acted for more than 12 months. There were two posts, and the Applicant was automatically shortlisted for the first one, post 693.
Gumede explained his role during the interview. He convincingly stated that the questions were prepared by the IC. The members that were to score could not read the questions as they had to pay attention to the questions and answer. The IC chairperson was unable to read the questions. As such he read the questions, which he confirmed were prepared by the IC. I cannot ignore the evidence of Gumede wherein he stated that organized labour was present. He further confirmed that SADTU was present and there were no issues raised by organized labour. In this regard I find there were no irregularities. An arbitrator is not the employer, and it is not my task to decide whether the employer has arrived at the correct decision. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. As I have previously stated, the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, such a decision should not easily be set aside.
The courts have held that even if there was unfair conduct by an employer during a promotion process, this does not mean that there is substantive unfairness. Substantive unfairness cannot exist in abstraction. The Applicant needs to establish a causal connection between irregularity or unfairness and the failure to promote, which means that, but for the irregularity or unfairness, he would have been appointed to the post, as laid out in Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP.

FINDING

In the matter before me the 1st Respondent did not shortlist the Applicant. I have no evidence that he was the best candidate for the position, and that he would have been appointed if he was shortlisted. In unfair labour practice disputes, the burden of proof rests with the employee to show that the employer’s actions were arbitrary, capricious, or motivated by bad faith. The Applicant was unable to demonstrate that his exclusion from the promotion process was based on any improper motives or that the 1st Respondent had acted unreasonably in assessing his qualifications.

AWARD