03 December 2025 -ELRC632-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KOMANI

Case No ELRC632-25/26EC

In the matter between

NAPTOSA obo Brenda Zisiwe Mhlontlo Applicant

and

Department of Education: Eastern Cape 1st Respondent

and

Antony Trom 2nd Respondent

ARBITRATOR: Catherine Willows

HEARD: 23 October 2025 and 25 November 2025

CLOSING ARGUMENTS: 28 November 2025

DATE OF AWARD: 3 December 2025

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to promotion

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

This matter was held at the Department of Education office at Bathandwa Office Park in Komani on 23 October 2025 and 25 November 2025. Present was Mrs Brenda Zisiwe Mhlontlo, the Applicant who was at all times represented by Mr Loyiso Mbinda an official of NAPTOSA, the 1st Respondent is the Department of Education: Eastern Cape who at all times was represented by Mrs Ntombomzi Damane an official of the Department, the 2nd Respondent is Mr Antony Trom who represented himself. Mr Siyamthemba Duma of the Council provided interpretation services.

THE ISSUE IN DISPUTE

I am required to determine whether the 1st Respondent committed an unfair labour practice in relation to promotion as contemplated by Section 186(2)(a) of the Labour Relations Act of 1995 as amended (LRA), when it appointed the 2nd Respondent to the position of Principal at Thembisa Primary School in the Chris Hani West District and if I so find to determine appropriate relief.

THE BACKGROUND TO THE DISPUTE

Parties had concluded a pre-arbitration minute dated 23 October 2025.
The common cause facts are:

• The Applicant has been employed by the 1st Respondent and stationed at Nomzamo Primary School within the Chris Hani West District since 1 February 1993.
• The Applicant applied for the vacant principal post advertised in the open post bulletin Volume 1 of 2025/122, with the closing date being 30 April 2025.
• The 1st Respondent has employed the Applicant since 1 February 1993 and is currently a displaced principal as her school, Nomzamo JPS was merged with another school, that of Masakhane SPS.
• The Applicant was shortlisted and interviewed.

The following are facts in dispute:

• Whether or not the 2nd Respondent met the minimum requirements as per the advertisement.
• Whether or not the 2nd Respondent has professional experience in teaching Foundation Phase grades.
• Whether or not the 1st Respondent’s employing authority, the Head of Department, signed and approved the SGB recommendation.

The Applicant seeks the appointment of the 2nd Respondent to be set aside and the Applicant to be appointed to the position alternatively, compensation as relief.
The parties each submitted a bundle of documents in support of their respective versions, such categorised as “Applicant Bundle” and “Respondent Bundle”, the documents accepted for what they purported to be unless specifically challenged.

SURVEY OF EVIDENCE AND ARGUMENT

I have considered all the evidence and argument, the Labour Relations Act no. 66 of 1995 (LRA) requires brief reasons, as such I have only referred to the evidence and argument necessary to substantiate my award and what follows is a summary of the submission of the parties and not a verbatim record of proceedings.
All evidence was presented under oath/affirmation.

The Applicant’s Submission’s

The Applicant’s representative submitted in opening statement that the Applicant challenges both substantive and procedural fairness of the appointment of the 2nd Respondent. In terms of procedure, it was cited that the 1st Respondent deviated from the principles of PAM by shortlisting the 2nd Respondent when he did not meet the minimum requirements of the position. The SGB panel also ignored criteria of requirement of foundation phase teaching in the Bulletin as well as the appointment letter of the 2nd Respondent was signed and approved by the District Director instead of the Head of Department.
In terms of substance, the Applicant’s representative submitted that the application form completed and submitted by the 2nd Respondent was not fully completed and incorrect information was provided. The 2nd Respondent had no foundation phase teaching experience but rather that of intermediate phase.
The Applicant, Mrs Brenda Zisiwe Mhlontlo, testified under oath and stated her qualifications were that of a Grade 12 certificate; A Junior Teaching Diploma (completed in 1992); an advanced certificate in Education from the University of Stellenbosch in 2006 and in 2019 a Management Development qualification from the University of Stellenbosch. She stated that the position in dispute required a principal who could teach Grades 2-3 and who could manage at the same time. In terms of her challenge, she stated that the 2nd Respondent should never have been shortlisted, as his application form was defective and incomplete in a number of respects. In particular, the following clauses / sections in the application form were defective and not completed: 16, 20.9; 20.10; 21.3;21.4; 24.3;24.4;25.4; 26.3;26.4;26.5; 28.3;28.428.5. She stated that for the sections that were left blank or not completed, the 2nd Respondent should have written “n/a”.
In addition, the 2nd Respondent held a “SPTD” which is a senior primary teaching diploma whereas the position required a foundation phase qualification. The requirement of the post was Foundation Phase which is grades R to 3 and needs a specific qualification, that of Junior Primary Teachers’ Diploma (JPTD). The Applicant stated that she holds such qualification, whereas the 2nd Respondent does not possess such a qualification, instead he possesses Senior Primary Teachers Diploma (SPTD) meant for someone to teach grade 4-7.
The Applicant stated that the 2nd Respondent should not have been shortlisted or interviewed as his application form contained errors and areas were left blank. She stated that the 2nd Respondent should have written “n/a” in areas that were not completed and in not doing so, he did not adhere to the requirements of the application form being completed in full.
The Applicant further submitted that as the 2nd Respondent was a resigned educator, the District Director did not possess the power to approve the appointment. She stated that the appointment of the 2nd respondent violated the policy directive issued by the Head of Department through Circular 7 of 2015 where it stated: “In the essence that you have to appoint a teacher who has resigned, accessed his/her pension, and wants now to re-enter the system; you are advised to submit a detailed motivation for my consideration and final approval, irrespective of whether this is a temporary or permanent appointment”. Therefore, she stated that the appointment of the 2nd respondent violated the policy directive as issued by the Head of Department through HRM Circular 04 of 2023.
Under cross-examination, the Applicant confirmed that she was shortlisted and interviewed for the position but was the 5th scoring candidate. She stated that she had applied for the position because it required management foundation phase and that she was a manager at her previous school. She stated that the 2nd Respondent could not teach foundation phase as he holds the qualification of SPTD for grades 4-6. The Applicant stated “according to me, I was the best candidate and I did my best for the questions asked of me and I was not deserving of being no. 5 as I was deserving of being no. 1”.
In terms of the approval, the Applicant cited that the appointment was “rush-rush” and “there was something fishy and it was unlawful”.
In closing, the Applicant’s representative submitted that on a balance of probabilities the decision not to promote the Applicant was taken in a biased manner. In support of such, it was provided that in Noonan v SSSBC and others [2012] 33 ILJ 2597(LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct to determine whether the appointment was arbitrary or motivated by an unacceptable reason”.
It was requested in terms of relief, that the employment process be declared procedurally and substantively unfair, the appointment process be nullified and the Applicant be appointed to the post, or the process be run afresh or alternatively, compensation of 12 months be awarded.

The Respondents Submission’s

The 1st Respondent called Mr Zukisani Sondlo as a witness who testified under oath that he is employed as the Circuit Manager for the Department of Education and he was the Resource Person throughout the recruitment and selection process for the appointment of the post of Principal for Thembisa Primary School. He stated that five (5) applicants were shortlisted and were interviewed of which the Applicant and 2nd Respondent were part of. He submitted that both the Applicant and the 2nd Respondent met the requirements for the position but that he did not agree that the Applicant was the best candidate for the position as he observed the interview process and the 2nd Respondent fared superior, ranking no. 1 and the Applicant ranking last out of all five candidates.
He stated that according to the SGB, the 2nd Respondent was the best candidate and recommended for the position. He stated that when they received all the sifted applications, there was no glaring irregularity that would have excluded the 2nd Respondent as he had filled in all the steps required and all necessary information was provided. Mr Sondlo conceded that the JPTD was the more advantageous qualification, but that with the SPTD the 2nd Respondent was eligible and that this was the view of the interview panel as many educators are teaching foundation phase with this qualification and that the 2nd Respondent was qualified for the position.
Mrs Zanele Gcaza testified under oath and stated that she is employed as the Acting Assistant Director for Human Resources by the 1st Respondent. She stated that her functions are to ensure that the 1st Respondent employs teaching and non-teaching staff in the district. She stated that the appointment of the 2nd Respondent was administered by her office but there was a discovery that the 2nd Respondent was a resigned educator, and as such, these appointments were to be made by the Head of Department and not the District Director.
It was for this reason that when the error was discovered, an application for Condonation was done. She stated that the appointment of the 2nd Respondent was rectified in terms of the error of the approval but that there was nothing wrong with such after condonation was granted.
She stated that the HOD would not have approved such appointment if it was not correct.
In closing, the Respondent’s representative submitted that in Nutese v Technikon Northern Transvaal 1997 4 BLLR 467 (CCMA) it was stated that employees have no right to promotion and as long as the employer can provide a rational basis for its decision, the appointment or promotion will not stand to be set aside.
Furthermore, it was submitted that the employer exercised its discretion correctly and in terms of Aries v CCMA & Others 2006 27 ILJ 2324 (LC) it was held that in challenging a decision to promote, an employee can only succeed in having the employer’s decision interfered with if it is demonstrated that the discretion was exercised capriciously, or with insubstantial reasons or based upon the wrong principles or in a biased manner.
It was requested that the Applicant’s application be dismissed.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

In unfair labour practice disputes the onus to the prove the existence of the unfair labour practice rests with the employee party. As such the Applicant is required to prove that an act or omission had occurred with renders her non-promotion an unfair labour practice as contemplated in Section 186(2)(a) of the LRA.
Relevant case law in the determination of disputes of this nature have been considered these being De Nysschen v GPSSBC and others (2007) 28 ILJ 375 (LC) where it was held that there is no automatic right to promotion, but a decision to promote must be exercised in a way that would not constitute an unfair labour practice. In Noonan v SSSBC and other [2012] 33 ILJ 2597 (LAC) it was held that a candidate has no right to promotion but must be afforded a fair opportunity to compete. Ncane v SSSBC and others (2017) 38 ILJ 907 (LAC) held that employers must abide by the law and the objective standards and criteria that it has set for promotion including eligibility for the post and ensure that the candidates had a fair opportunity to compete for the post, the process must be procedurally fair as unfairness may result in the final decision being substantively unfair.
In addition to the above due consideration has been given to ELRC Collective Agreement 3 of 2016 the Code of Good Practice on determining promotion disputes.
The crux of the Applicant’s challenge to the appointment of the 2nd Respondent are centred on three main aspects, being that the 2nd Respondent did not meet the requirements of the position; the appointment of the 2nd Respondent being signed and approved by the District Director instead of the Head of Department and the defective and incomplete application form submitted by the 2nd Respondent.
In terms of the allegation of defective and / or incomplete application form, Clause 2.2 of the Recruitment and Selection Policy states “The application forms must be completed in full, duly signed with an original signature and date”. The Applicant averred that the application form submitted by the 2nd Respondent was defective in that a number of sections were left blank and incorrectly completed. In terms of the 2nd Respondent’s application (page 24 of Respondents’ Bundle”), as an example of such, Section C relates to competencies and language. The 2nd Respondent duly completed such section and cited languages of English, IsiXhosa; Isizulu and Afrikaans. Two additional paragraphs are provided for as in “5” and “6”.
It was the Applicant’s submission that as there were a number of languages spoken in South Africa, these columns should not have been left blank but rather a “n/a” be assigned. This submission applied to all sections that were not completed by the 2nd Respondent in this manner, inclusive of professional activities and organisations, whereby the 2nd Respondent had only cited at 24.1 and 24.2 but had left the remaining blank.
It was unclear upon what premise the Applicant cited her allegation of unlawfulness and irregularity in this respect. She appeared to hold a view that the application form was incomplete as the 2nd Respondent had not completed all sections and provided a “n/a” on the sections that were not applicable to him or he had nothing further to cite. This view of the Applicant is not grounded in any substantial premise in law. It is simply her “view” and there is accordingly no premise upon which she can assert such allegation as it is not supported.
Upon perusal of the 2nd Respondent’s application form submitted for application for the position, it is a comprehensively completed application form with no material errors that would disqualify him.
I cannot agree with the Applicant in her submissions that the leaving of a blank space should invalidate the application as if the information requested is provided in the form then it must be viewed as complete. However, should critical information be omitted then such application must be rejected. There is nothing in the document itself or the policy document which directs that each section must be completed in such a manner that no blank spaces appear. The Applicant’s averment in this respect accordingly lacks any substantive basis.
In terms of the Applicant’s averment that the 2nd Respondent did not meet the requirements for the position, she based her allegation on the aspect that the 2nd Respondent was not eligible nor met the requirements to teach foundation phase. The 2nd Respondent holds a SPTD whereas she holds a JPTD. The Open Post Bulletin Volume 1 of 2025 dated 3 April 2025 cites one of the requirements for a Principal as being: “a recognised three- or four-year qualification in education, which includes professional teacher education”.
In terms of the 2nd Respondent’s application form, he holds the following qualifications: Bachelor of Education; Hons.B.Ed; Advanced Diploma in Education in Senior Phase Natural Sciences and Senior Primary Teacher’s Diploma.
In cross-examination of the Applicant in addition to clarity being sought, the Applicant was unable to direct or detail as to her averment as to why the 2nd Respondent with his qualifications was not eligible for appointment to the position of Principal. There was no accordingly no direction in terms of any policy, practice nor law that prevented the 2nd Respondent from being eligible for appointment on the basis of his qualifications. The Applicant’s averments of substantive unfairness in this respect are based upon her view of the suitability of a JPTD versus a SPTD rather than a bar to such appointment.
In terms of the approval of the SGB’s recommendation dated 11 August 2025 signed by the District Director, it was common cause that such was not in compliance with Circular 7 of 2015 as the 2nd Respondent was a previously resigned educator. The Respondent submitted in evidence that once the irregularity was discovered, a request for Condonation for the appointment of the 2nd Respondent was submitted to the Head of Department from the District Director on 3 September 2025.
In such application for condonation, it was submitted that such was not recognised by the human resource office that the approval was to be obtained from the Head of Department and that the District Director was misled to approve such. The error was later discovered and in explanation of such, it was cited that the office was under overwhelming pressure in completing the population of the bulletin as there were three bulletins that closed on the 31st July 2025. In response to such application for condonation, such was duly granted by the Head of Department in writing on 16 September 2025.
In an assessment of the averment of procedural unfairness and / or unlawfulness, I was not provided with any material basis nor judicial precedent that would invalidate the appointment of the 2nd Respondent on this basis.
Whether or not such alleged procedural flaws create unfairness and prejudice, Observatory Girls Primary School & another v Head of Dept: Department of Education Gauteng, Case no 02/15349 [2006] JOL 17802 (W) held that strict compliance with recruitment processes are not required but that substantial compliance is sufficient.
For a procedural defect to have a material impact on a person it should be of such a nature that it limits the candidates right to fairly compete with this being the only right established by the courts.
The Applicant presented no material evidence as to why the appointment of the 2nd Respondent was irregular in any respect resulting in any substantive or procedural unfairness being perpetuated against her. Her allegations in this respect were premised upon her subjective view, and not on any basis grounded in law.
It is therefore my finding that the 2nd Respondent had met the requirements of the post, that the Applicant had been given a fair opportunity to compete for the post but did not establish either during the selection or interview process or during this arbitration that she was the best candidate for appointment as such there is no substantive nor procedural unfairness. There is further no evidence pointing thereto that the Applicant was procedurally prejudiced due to non-compliance with PAM as she was afforded a fair opportunity to compete for the post.
The processes that must be followed during the recruitment and selection process of educators were duly followed and in light of the judicial precedent cited in the analysis of the respective parties versions, the Applicant has failed to substantiate any irregularity or unfairness in the failure to promote. She has accordingly failed to prove that not only was she better qualified and suited for the post than the successful candidate who was appointed, but also that she was the best of all the candidates who applied for the position.
In the premises I make the following award.

AWARD

The Applicant, Brenda Zisiwe Mhlontlo, has failed to establish that the 1st Respondent, the Department of Education: Eastern Cape, committed an unfair labour practice in relation to promotion as contemplated by Section 186(2)(a) of the LRA, as such she is not entitled to any relief.
There is no order as to costs.