Commissioner: VEESLA SONI
Case No.: ELRC998-25/26KZN Date of Award: 04 AUGUST 2026

In the ARBITRATION between:

NUPSAW obo MAHLOBO, NOZIPHO SINDISWA
AND 6 OTHER APPLICANTS
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL 1st RESPONDENT

Union/Applicant’s representative: Represented by NUPSAW
Mr Nkosiphi Nyandu

Respondent’s representative: Samkelo Ngcobo

Details of the hearing and representation

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (2) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 11 May 2026 on a virtual platform. The matter proceeded and was part heard.
2. The matter was re-scheduled for 22 and 23 July 2026 and was finalized.
3. The Applicants, N S Mahlobo, L I Ndaba, D T Gumede, L S Mhlongo, N V Mavundla, T V Hlongwane and Khumalo were represented by Nkosiphi Nyandu. The Respondent was represented by Samkelo Ngcobo.

Issue to be decided

4. The issue in dispute was whether the Respondent committed an unfair labour practice against the Applicants in respect of benefits.

Background and survey of evidence

5. The dispute relates to the benefits in respect of the QMS performance (Quality Management System). These benefits were alleged to have become due in July 2025 for the 2024 academic year. The benefits were the performance benefit in percentage due to the Applicants and not the same amount for all Applicants which was equivalent to 1.5 % of their salary. All Applicants were at level P L 1. Their salaries differed according to the number of years in service. All the Applicants are educators in Amangwane High School.
6. The Applicants’ case was that they were entitled to the QMS benefit which was equivalent to 1.5% of their salary but was not paid the said amount. Their immediate supervisors failed to perform their duties in that they failed to assess the Applicants. The principal also failed to perform his duty in that he failed to take any steps to resolve the matter or rectify the oversight. The benefit became due in July 2025 but the 1.5% was not paid into their salary. The benefit accrued from July 2025 to date.
7. The Respondent’s case was that the Applicants did not undertake the QMS assessment. If they had undertaken assessment they would have been afforded the assessment percentage. As such, the QMS was not due, owing and payable to them. Every educator that received the QMS, underwent the assessment. There was therefore no unfair conduct or treatment by the Respondent.
8. The parties requested that the matter proceed by way of a stated case. They requested that their case be argued by way of a stated case and the commissioner make a decision based on their respective arguments.

Applicant’s case

9. It was submitted that all the Applicants received their 1.5 percent bonus in all years except in 2024. Based on the fact that they received such a benefit in all the preceding and subsequent years, and not in 2024, depicted an unfair conduct on the part of the Respondent.
10. The procedure was outlined in Collective Agreement No. 2 of 2020. Due to their failure to comply with procedure, the Applicants have suffered harm and prejudice which was ongoing, as the non-payment of the 1.5 percent, affected their salary and will continue to affect their future salary. The purpose of the benefit was to capacitate educators and encourage compliance in terms of their contracts.
11. The Resolution stated that the aim of the QMS was to determine a level of competence for all educators. It was a paying salary progression and incentive for educators. It was argued that Government Schools were different in that they lacked infrastructure. It was accepted, and common cause that the Applicants in this dispute were not assessed by management. The reason being was that it was a public school and all educators were busy. The educators were not assessed by their immediate supervisors, and inadequate steps were taken to ensure that the assessment was done.
12. It was submitted that the assessment was not done due to the rush for the examinations. They had performed well and had they been assessed they would have achieved their increases.
13. It was contended that the school and its dynamics had to be considered. It was a government school, but the learners came from poverty-stricken families. There were poor municipal structures and a lack of resources. The Applicants being educators had a variability of social challenges. The purpose of the Collective Agreement was to prevent a disadvantage to such educators, given their daily challenges.
14. It was not disputed that the Applicants did not perform. The only challenge was that they were not assessed. In this regard the Respondent, by way of the school, acted inconsistently, as some educators were assessed but not the Applicants. The principal of the school failed to assist the Applicants which resulted in their disadvantage. The principal had to submit all the assessment which he failed to do. There was a duty on the principal to have intervened when challenges arose so that all the educators obtained the benefit.
15. It was argued, that in terms of the Agreement there was a duty on the school management team (hereinafter referred to as “SMT”) to manage, plan and implement the QMS process. There was also a duty to provide training which was not done. The Applicants did not resist training, as if they had done so, they would have been charged for misconduct. Furthermore, the supervision could have been undertaken by way of classroom observations or record keeping, which again was not done. The SMT failed to initiate adequate steps for the assessment.
16. It was argued that there were unforeseeable occurrences that prevented the assessment which were not considered, such a community protests. Ms NHL Mahlobo was not furnished with the QMS instrument. She was assessed mid-year and was found to be competent. Ms N V Mavundla was also not timeously furnished with the QMS instrument and was not given class except to invigilate the grade 11 class exam. Ms Gumede, Mr M V Hlongwane, Mr. S Khumalo, Ms Lindokuhle Ndaba and Mr. L S Mhlongo were not given the QMS instrument. As such, the employer acted unfairly and the Applicants requested that they be awarded their 1.5 percent QMS benefit.

RESPONDENT’S CASE

17. It was submitted that the matter pertained to nine educators at AmaNgwane High School who sought a 1.5% pay progression in terms of Collective Agreement No. 2 of 2020 despite having failed to comply with the Quality Management System (QMS) requirements. The Respondent submitted that the Applicants were not entitled to the pay progression because they wilfully refused and/or failed to complete QMS in the 2nd semester of 2024, despite repeated reminders and assistance.
18. Collective Agreement No. 2 of 2020 (hereinafter referred to as the Collective Agreement) provides for a standardized framework for educator performance. QMS was compulsory for Post Level 1 educators to qualify for 1.5% pay progression. At AmaNgwane High School, QMS was done in two folds: 1st Semester and 2nd Semester. 2nd Semester scores were final and submitted to Bergville CMC. In the 1st Semester all nine educators completed QMS. In the 2nd Semester 2024, despite reminders from DHs and the Principal, the Applicants refused to comply.
19. Languages: Mr NC Khanyile & Miss LI Ndaba told the department head, Ms Khumalo (hereinafter referred to as DH) to “put zero”. This was their response to their DH; hence the DH was not able to make up scores unless they went to class and executed the requirements of Collective Agreement.
20. Maths: Mrs NV Mavundla, Mr LS Mhlongo, Mr TV Hlongwane blatantly refused and said, “put zeros”. Numerous attempts were made by the Maths DH (Mr. Cwasi S) to ensure that three educators complied with the collective agreement however his efforts were undermined by those educators. The refusal to comply resulted in the non-payment of the pay progression. QMS was mandatory for an educator to be paid 1.5% pay progression. Mr. TV Hlongwane as indicated in Annexure A, confirmed his statement that zero must recorded, on 10th of October 2024.
21. Humanities: Miss NLS Mahlobo & Miss DTH Gumede provided excuses until closing date of 13 to 19 November 2024. The two educators were reminded about their QMS. There was resistance by both educators which hindered the process. There was a similar problem in the first semester. They did not care about the progression hence they did not do QMS in the previous semester. A meeting was held on the 24/25 April 2025 to deal with the QMS and Mahlobo and Gumede were part of that meeting but failed to undergo the QMS.
22. Sciences: Mr SN Khumalo & Miss Nyele Z refused despite meetings on 5, 13, 14, 18 November 2024. The two educators were reminded by the DH (Miss Dubazane PS) but continuously changed the dates for their QMS until the due date for the submission passed (25 November 2024). Educators who did their QMS on time were scored.
23. On 25 November 2024 the principal submitted zero for the Applicants to the CMC and this was announced to the staff on 26 November 2024. The principal had no option but to meet the due date for the submission of the QMS as prescribed by the Bergville CMC for the academic year 2024. The Applicants could have undertaken their QMS from the beginning of the second semester (July 2024 to November 2024) and were reminded by the DHs (SMT). There was about 45 staff members that were compliant hence they received their benefit.
24. There was intervention from the District Labour on 4 & 11 September 2025. The Applicants were given a chance to respond but there were not scored hence there was no change. The uThukela District office had conducted an enquiry into the matter and concluded that the Applicants could not be paid the 1.5% pay progression as they were not scored. They agreed they did not undertake the 2024 QMS hence they were issued with the grievance outcome letter from the district office, after an enquiry was done.
25. Clause 3.2 of the Collective Agreement made the QMS compulsory for all school-based educators. It is a condition precedent for pay progression. In SADTU & Others v MEC for Education, Mpumalanga & Another 2019 (3) SA 340 (CC) the Constitutional Court held that collective agreements concluded in the ELRC are binding on all parties and must be implemented as agreed. The Agreement was clear: “No QMS, No Pay Progression.” The Applicants were not entitled to the benefit without fulfilling the obligation. The onus was on them to prove that they did the 2024 QMS. The Employer gave the Applicants ample opportunity by way of reminders personal calls by the principal on 13 November 2024, WhatsApp on 19 November 2024 and staff meeting reminder on 20 November 2024. Despite all of the above the Applicants failed and or refused to participate.
26. In MEC for Education: KZN v Pillay 2008 (1) SA 474 (CC) the Court emphasized that public officials must apply policy consistently. To award pay progression without QMS would be unlawful and prejudicial to other compliant educators. The Applicants’ non-compliance was wilful as they were given time, assistance, and multiple warnings. The Collective Agreement did not permit pay progression without a QMS score. The Respondent requested that the application of the applicants be dismissed as the Respondent correctly implemented Collective Agreement No. 2 of 2020 by withholding 1.5% pay progression.

ANALYSIS OF EVIDENCE

27. The matter was referred as an unfair labour practice: In terms of section 186 (2) (a) of the Labour Relations Act, unfair labour practice is defined as follows:
    ‘Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relation 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.’
28. The onus is on an employee to prove that they are entitled to relief in terms of this section. In order to succeed under this section, an applicant needs to at least prove that the unfair conduct constituted an unfair labour practice and that they are entitled to the relief claimed.
29. In this matter both parties specifically requested that the matter proceed by way of a stated case. It was further submitted that no formal evidence would be led as they relied on the Collective Agreement and documentary evidence. The first enquiry was whether any unfair conduct was proved.
30. An employee who alleges that he/she 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. By reference to Arries v CCMA & others (2006) 27 ILJ 2324 (LC) which sets out the test of fairness taking into account inter alia the following factors:
    • whether the failure or refusal to promote 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; or
    • whether the employer failed to apply its mind to the promotion of the employee; or
    • whether the employer’s decision not to promote was motivated by bad faith;
    • whether the employer’s decision not to promote it was discriminatory;
    • whether there were insubstantial reasons for the employer’s decision not to promote;
    • whether the employer’s decision not to promote was based upon a wrong principle;
    • whether the employer’s decision not to promote was taken in a biased manner.
31. The above case related to promotions but the principle of the judgment bears significance in terms of any claim of an unfair conduct. The overall test is one of fairness and as per Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC) in which the court found that:
    “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.”
32. In applying the tests laid out in the above cases I now assess the evidence of the current matter to determine whether the decision of the Respondent measured the fairness yardstick. At the outset, I want to assess the case presented by the Applicants, (which was done by way of a stated case). The Applicants’ dispute related to the benefits in respect of the QMS performance (Quality Management System). These benefits were alleged to have become due in July 2025 for the 2024 academic year. The benefits were the percentage due to the Applicants which was equivalent to 1.5 percent of their salary. QMS was compulsory for public school-based educators to qualify for annual pay progression. Performance evaluations, mid-year reviews, and annual summative scores must be completed and submitted through QMS. This was a mandatory evaluation for educators who were required to complete the full QMS appraisal cycle. Failing to submit required performance documents or being unapprised will render the educator not eligible for pay progression
33. All Applicants were at level PL 1. All the Applicants were educators in Amangwane High School. Their claim for pay progressions emanated from the Collective Agreement No. 2 of 2020 but they failed to comply with the QMS requirements. The issue was whether they were still entitled to such a benefit in the absence of the QMS. The Respondent submitted that the Applicants were not entitled to the pay progression because they wilfully refused and/or failed to complete QMS in the 2nd semester of 2024, despite repeated reminders and assistance. The Applicants claimed that their personal circumstances, the school system as well as the SMT and Principal were all factors that affected them. It was not a deliberate act and the responsibility rested with the Principal and SMT to have ensured that they underwent the assessment. The fact that this was not done amounted to an unfair and inconsistent conduct.
34. I want to touch on the interpretation of the Collective Agreement. The courts have considered the issue of interpretation on several occasions and the applicable principles are by now set as trite. In my view, a brief overview of the principles will be useful in casu. In The Supreme Court of Appeal (SCA) in Natal Joint Municipal Pension Fund v Endumeni Municipality (2012 (4) SA 593 SCA), the following was said:
    ‘The present state of the law can be expressed as follows: interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document…. The “inevitable point of departure is the language of the provision itself” read in context and having regard to the purpose of the provision and the background to the preparation and production of the document…’
35. The process of interpretation does not stop at a perceived literal meaning of words but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. Interpretation is no longer a process that occurs in stages but is essentially one unitary exercise. I am required to consider the agreement in its plain, ordinary and popular meaning and if there is no ambiguity in the words of the contract. Here there was no ambiguity hence the plain meaning of the words was considered. The Collective Agreement provided that the QMS was compulsory for Post Level 1 educators to qualify for 1.5% pay progression. Now at AmaNgwane High School QMS was done in both the 1st Semester and 2nd Semester. The 2nd Semester scores were final and these were submitted to Bergville CMC. Evidently all the Applicants completed their QMS in the 1st Semester but not the second semester. The documentary evidence produced by the Respondent established that despite reminders from DHs and the Principal, the Applicants failed to comply in the 2nd semester.
36. The Applicants on the other hand went into much detail explaining the factual circumstances that created challenges in finalising their assessment. These circumstances were not disputed. It was also argued that the SMT and Principal failed to ensure that the assessment was done. I accept that they indeed failed to ensure that it was done but I cannot ignore the fact that these Applicants did not persist in safeguarding themselves in insisting that the assessment was carried out. I am conscious of the fact that it was a government school and the dynamics of problems in government (public) schools stem from an interlocking web of systemic, operational, and socio-economic challenges that collectively undermine the operation of the school. With that in mind, I must note that despite such challenges the assessment was carried out in previous years.
37. The mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depending upon the circumstances of a particular case and essentially involves a value judgement. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidates. In this regard the Collective Agreement was binding. The participation in the assessment process was mandatory for the benefit to be invoked. QMS was a compliance-driven exercise rather than a developmental opportunity. It was submitted, and I accept this argument, that the system was not aligned with classroom realities, lacked adequate support structures, and was inconsistently applied in schools. These issues were compounded by limited professional development, inadequate training in appraisal procedures, and varying degrees of leadership engagement, all of which contribute to a fragmented and, at times, superficial implementation of the QMS.
38. That being the case, which is an acceptable reality, the Applicants herein did not undergo the assessment therefore they are not entitled to the 1.5 percent benefit. The Department of Basic Education explicitly states that educators not appraised within the evaluation cycle or grace period are not eligible for salary/pay progression. Non-submission of the required performance management sheets by the school leads to automatic disqualification from the annual notch increase. There were no exceptions to the requirement. Even if the fault lies with the School Management Team (SMT) in that they failed to conduct or sign off evaluations, it still amounted to non-compliance.
39. Accordingly, I find the Applicants have failed to discharge the onus vested upon them and cannot be granted the relief sought. Award
    I make the following award:
40. There is no unfair labour practice in respect of the non-payment of benefits.
41. The application is dismissed.

ELRC Commissioner: VEESLA SONI
Date: 04 August 2026