IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case number: ELRC773-25/26EC

In the matter between

NEHAWU obo Dolly Hanjana Applicant

And

Department of Higher Education and Training (DHET) First Respondent

SADTU obo Simangile Mtshakazana Second Respondent

Appearances: For the Applicant (NEHAWU): Mr. Sinethemba Nkunzana
For the first respondent: Ms. Sinazo Mhaleni – Assistant Director: Industrial Relations
For the second respondent (SADTU): Ms. Ntombi Gongotha
Arbitrator: Thobela Ncetezo
Heard: 15 August 2026
Delivered: 3 September 2026
SUMMARY: Unfair labour practice – Section 186(2)(a) of the LRA – .Promotion

ARBITRATION AWARD

Details of hearing and representation

1. The dispute was set down for arbitration on 27 November, 11 December 2025, 29 January, 26 March, 12 June and 11 August 2026 at Ikhala TVET College Boardroom in Komani. Mr. Snethemba Nkungana who is an official of NEHAWU represented the applicant, Miss. Dolly Hanjana.
2. Miss. Sinazo Mhaleni who is employed by the as Assistant Director: Industrial Relations represented the first respondent, Department of Higher Education and Training (DHET).
3. Ms. Ntombi Gongotha represented the second respondent, SADTU obo Simangile Mtshakazana. The second respondent chose not to participate in the proceedings.
4. The proceedings which were mechanically recorded were conducted in English. The applicant and witness of the first respondent testified under oath. The parties requested to submit closing arguments in writing, the last of which was received on 19 August 2026.

Background to the dispute

5. The applicant applied for the position of Lecturer which was a readvertisement in the Daily Dispatch dated 25 August 2024. She was shortlisted and invited to an interview. Later she was informed that the interviews were put on hold.
6. She then heard that the interviews proceeded and the principal told her that the interviews would continue the next day and that she does not qualify. Principal told her interviews would continue on through NEHAWU delegation.
7. At the time the applicant referred the unfair labour practice dispute she was employed on a fixed term contract which was renewed on different periods at a salary R22 500.00 per month but at the time of arbitration she was no longer working at Ikhala TVET College.
8. She requested for the reversal of the appointment of the incumbent.

Survey of evidence and arguments
Applicant’s case

9. The applicant, Mrs. Dolly Hanajana, testified that she started working for the first respondent on fixed-term contracts as a Lecturer for data processing. Her contracts were renewed after every three months.
10. In 2016 she heard rumours that lecturers needed to have qualifications in education.
11. In 2021 she started lecturing computer processing. The post that she applied for (Lecturer: Computer Practice/Information Processing) was being advertised for the third time and during that time she was studying towards an Advanced Diploma in TVET which she was going to complete in June of that year. She included this information in her covering letter when she was applying for the post in question. She was shortlisted. She obtained the qualification in education in November 2025.
12. Later she heard that her name had been removed from the shortlist even though she had been invited to an interview on 30 April which was to take place on 6 May 2025.
13. On 5 May she received a call informing her that the interviews had been postponed and would be held on 19 June 2025. When she received a letter that her name had been removed from the list of candidates, she made enquiries from the human resources department and principal but she did not receive any response.
14. She then lodged a grievance through her trade union but she did not get a response from the Assistant Director and a grievance meeting was not held to address her grievance. She was then disqualified from the interviews.
15. On 18 June 2025, a day before the interview, she received a letter from the principal, Mr. TE Ntangamo, withdrawing her invitation to the interview (AB-Page 28), which stated that she did not meet the minimum requirements of the post because she did not possess a professional qualification in education.
16. She requested for information that the HR Department said they had received from SAQA, SACE and DHET stating that her qualifications were not qualifications in education but she never received that information. She stated that the respondent was not specific which requirements the applicant did not meet.
17. Under cross-examination the applicant stated that she qualifies for the post in terms of the first respondent’s policy and because also for the fact that he has been teaching for years.
18. She referred to Policy on the Minimum Requirements for Teacher Education Qualifications, as revised, 2024 (AB-page 56) with reference to initial qualifications for Grade1-12 teachers and first post initial professional qualifications, which is an Advanced Certificate in School Leadership and Management. She then conceded that she does not qualify for the post in dispute. She believes that in terms of this policy she met the minimum requirements of the post.
19. She further stated that she expected the principal to give her a chance and that she had been employed by the first respondent for years without the said qualification in education. She further stated that if she had received communication about her position, she would have considered to accept the outcome.

Respondent’s case

20. The witness of the first respondent, Mr. Lunga Malindi testified that he is employed as Deputy Principal: Corporate Services. His duties include among other duties human resources and recruitment processes. He explained that all documents with regard to compliance and quality check start with him before they can be approved by the principal as it is also his role to ensure quality check and give advice in matters of recruitment and selection.
21. He further testified that he approached SAQA and SACE to enquire if the program that the applicant possessed, Advanced Certificate in School Leadership and Management, was a professional qualification in education. The response he received was that it was a managerial qualification. He testified that a person placed in an education institution must have a practical teaching qualification in education.
22. He further testified that the applicant was appointed at a time when there were no proper processes in place and as such some appointments were irregular but in due course processes were then put in place and it was communicated to staff that they needed the qualification education in order to qualify as lecturers, The DHET also issued a circular to this effect.
23. He further testified that the posts of lecturers were then advertised, including that of the applicant and she never challenged the advertisement of her post, and that she was not the only one who was not appointed after the posts were advertised.
24. He further testified that the principal sent an e-mail to Mr. Sethusha who is DHET Director of Lecturer Development and Support Technical and Vocational Education and Training seeking advice regarding the applicant’s qualifications as he wanted to make an informed decision with regards to the applicant’s qualifications. His response was that the applicant was still professionally unqualified and could not be appointed yet if not appointed already (RB -page 8).
25. He stated that there are no bases to nullify the post as the applicant did not professionally qualify for the post in question as did not meet the inherent requirements of the post.
26. He admitted that that the applicant did not receive documents from DHET and SAQA but said that does not make the applicant suitable for the job.
27. Under cross-examination the witness stated that shortlisting a person who does not meet the inherent requirements of a job would result in an unfair process but if that person is removed from the shortlist then the process is fair. He stated that only people who meet the inherent requirements should be shortlisted by the panel and interviewed. If an unsuitable candidate was shortlisted by mistake that person can be removed as they cannot continue with an irregular process. In this case it was the first time that the panel had encountered this problem and therefore it was an isolated case.
28. They also checked with Nelson Mandela University (NMU) because the applicant claimed that she had a qualification in education. She only had a qualification in Education leadership and management.
29. He admitted that he approached Council for Higher Education (CHE) and SAQA that confirmed that the Applicant’s qualification was not a professional. He stated that they are also guided by policy to determine whether a qualification is a professional qualification in education.
30. He further stated that the applicant received an outcome to her grievance (RB – page 14).

Applicant’s closing arguments

31. The applicant argued that argument that the process was not fair and the matter of withdrawing the applicant from the race of promotion was void and unjustifiable. The applicant was shortlisted and Mr Malindi the witness of the respondent confirmed during the cross examination that the panel was competent and experienced to do the job.
32. Initial teacher qualification leads directly towards teacher qualification and on the other side professional qualification it converts an existing discipline into a teaching qualification. The revised policy document on minimum requirements for teacher education qualification making examples about trajectory that someone can follow in qualification pathways to maintain a teaching and learning career.
33. Leadership and Management are listed as part of qualification pathways that someone can choose to maintain a teaching and learning career. Our argument is clear, if a post-graduate diploma in educational management and leadership was not recognized by the policy mentioned above, it was not going to be listed under the pathways someone can choose for a teaching career.
34. It was further argued that the process that led to the appointment of the second respondent was unfair and flouted. The applicant was shortlisted by a competent and experienced panel and was expected to be afforded opportunity to be interviewed as she met the requirements.

Respondent’s closing arguments

35. The first respondent argued that its evidence remained largely uncontested and was corroborated by documentary evidence and the Applicant’s own admissions. The evidence overwhelmingly demonstrates that she did not meet a fundamental requirement of the post, namely a recognised professional qualification in education.
36. It was further argued that she conceded during cross-examination that she does not possess an initial teaching qualification; She lacks the pedagogical learning component required by policy; and according to the policy, she does not qualify for the post.
37. These admissions alone justify the respondent’s decision to remove her from the shortlist. It acted responsibly when it discovered the irregularity. Rather than proceeding with a flawed recruitment process, it took steps to verify compliance with statutory and policy requirements and corrected the error.
38. The undisputed evidence is that all candidates who remained shortlisted met the requirements of the post. Her reliance on the fact that she had previously been employed by the respondent is misplaced. Previous employment on fixed-term contracts does not exempt an applicant from meeting the requirements of a newly advertised permanent position.
39. The Respondent’s decision was therefore rational, lawful, and consistent with the applicable recruitment requirements.

Analysis of evidence of evidence and arguments

40. Section 138(1) of the Act provides that the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. Section 138(7)(a) further provides that the commissioner must issue an arbitration award with brief reasons, signed by that commissioner.
41. The dispute before me was referred in terms of Section 186(2)(a) of the Act. It is trite law that in disputes of unfair labour practice, the principle of “he who alleges must prove” is applicable. The burden of proof is therefore on the applicant to prove that the conduct of the respondent is an unfair labour practice in terms of the above section, which provides that:

“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving…unfair conduct by the employer relating to the 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;

42. The applicant alleged that the respondent’s withdrawal of her invitation to an interview a day before the day of the interviews constitutes an unfair labour practice in terms of Section 186(2)(a) of the Act. Her testimony was that she qualified for the post and, therefore. Her desired outcome was for the post to be readvertised.
43. To establish an unfair labour practice in terms of the Act, two enquiries have to be made. Firstly, the Applicant has an onus to establish that the existence of a conduct by the Respondent, which he alleges constitutes an unfair labour practice. Secondly, if the existence of such conduct has been established, the Applicant has to prove that the conduct constitutes an unfair labour practice in terms of Section 186(2)(a) of the Act.
44. It was common cause that the Applicant applied for the post of a Lecturer: Computer Practice/Information Processing/Life Skills (Computer Component)/Office Data Processing. She was initially shortlisted, invited to an interview but before the date of the interviews her invitation to an interview was withdrawn on the basis that she did not qualify for the post in that she did not possess a qualification in education (RB – page 11). The minimum requirements of the post AB -page 1) were as follows:

Grade 12/NC(V) Level 4 Certificate or equivalent; An appropriate 3-year Diploma/Degree in Office Management & Technology/Management Assistant with Information Processing or Computer Practice as a major subject. Professional Qualification in Education. Valid Proof of SACE Registration. Proof of Computer Literacy. Must be willing to teach NC(V) and Report 191. Teaching experience in the TVET Sector will be an added advantage.

45. The respondent’s testimony for withdrawing the applicant’s invitation to the interview was that she did not possess a qualification in education, which was one of the minimum requirements for the post. The applicant testimony was also that at the time that the post was advertised she was still studying Diploma TVET with NMU.
46. The response from enquiries that the first respondent made from DHET about whether the applicant met the minimum requirements was that she did not have a qualification in education. The statement by the applicant under cross-examination that she had been lecturing without a qualification in education for years is, in my view, admission and acknowledgement that at the time she did not possess this qualification. The response from NMU was that she had not yet completed her Diploma TVET qualification and that she would qualify in April 2026 (RB -page 8).
47. The applicant also based the alleged unfair labour practice on the fact that she had been working for the first respondent for years without the qualification in education. This argument gives the impression that the applicant felt entitled to the post and not because she was the best candidate but because of her long service with the first respondent. . In Noonan v Safety and Security Sectoral Bargaining Council 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.
48. The applicant did not dispute the testimony of the respondent’s witness that it was communicated to staff that they needed to have a qualification in education. This testimony was in line with the applicant’s testimony that in 2016 she heard rumours that lecturers need to have education qualifications.
49. She did not advance any testimony that the incumbent or any of the applicants who were invited to the interview did not meet the minimum requirements of the job. In her own testimony she conceded that at the time of advertising the post and of interviews, she was still studying towards a qualification in education and this was confirmed by NMU where she was registered (RB – page 8)
50. I am of the view that it would not be logical to order the reversal of the appointment of the second respondent and re-advertisement of the post when the applicant has not been able to prove on a balance of probabilities that she met the minimum requirements of the post and deserved to be shortlisted and invited to an interview. I am of the view that shortlisting and inviting to an interview a candidate who did not meet the minimum requirements of the post would have constituted an unfair labour practice.
51. I am therefore of the view that the Applicant has failed to prove on a balance of probabilities that the conduct of the first respondent amounts to an unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended.
52. I accordingly make the following award;

Award

53. The application is hereby dismissed.
54. There is no relief awarded to the applicant.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education