04 December 2025 -ELRC494-25/26GP

Case Number: ELRC494-25/26GP

Date of Award: 03 DECEMBER 2025
In the ABITRATION between
SADTU obo THOMAS MULIMISI MASALA
(Union)

And

GAUTENG DEPARTMENT OF EDUCATION
(Respondent)

Details of the hearing and representation

This is an award in the arbitration hearing between Applicant, Mr Thomas Mulimisi Masala, and the Gauteng Department of Education, the Respondent.
This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995, as amended (the LRA), and the award is issued in terms of section 138(7) of the LRA.
The arbitration hearing took place on 19 September 2025 and finalized on 19 November 2025, at Motheo TVET House in Bloemfontein.
The Applicant, Mr Thomas Mulimisi Masala, attended the proceedings and she was represented by Mr Simon Thakgalane Sathekge.
The proceedings were electronically recorded, and handwritten notes were taken. There was no interpreter.

The issue to be decided

I am required to decide whether there was an unfair labour practice committed by the Respondent or not. If found to be unfair, I must decide the appropriate relief.
I am also required to determine an appropriate remedy. The Applicant sought compensation.

Background to the dispute

The Applicant was employed as an Educator in the Department of Education, and he was in a position of the deputy principal. He was employed on 14 August 2014. He worked 5 days per week. He earned R45 387,00 per month at the time of the dispute.
The Applicant referred a dispute for an unfair labour practice dispute related to benefits in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995, as amended (the LRA).
The matter was set down for con/arb on 25 September 2025, and the arbitration commenced. However, it remained partheard. It was set down for three days from 19, 20, 21. The Applicant submitted that his three witnesses were no longer available. He indicated that two of his witnesses were at the marking centre, and the other witness was booked off sick and went home. This left him with no witnesses, which meant that his case was unexpectedly closed, as I had to proceed to the Respondent’s testimony. Hence, the matter could not take place for three consecutive days as booked.

The issues in dispute

The inconsistency of the Respondent in terms of the application of the policy.
Unfair extension of acting employees.

Survey of evidence

The Respondent submitted the bundle of documents labeled as bundle “R”, and the Applicant’s bundle labeled bundle “A”.
I am required to provide an award with brief reasons. The analysis of evidence and arguments is based on a summary of relevant evidence tendered under oath in these proceedings.
Both parties were requested to submit the closing arguments not later than 25 November 2025, and they complied in terms of the
submissions.

Applicant’s evidence

The Applicant submitted that the dispute arose when approaching term 2 in 2025, when the Circuit manager delivered the acting letter of appointment to the colleague at school.
He testified that it was inconsistent and not in compliance as per page 5, line 1. He testified that he was aggrieved because, according to the policy, managers must rotate on acting appointments. In cases where there were two or more employees who qualified to act, the manager had the responsibility to find out whether they were open to act or not.
The Applicant stated that he acted from 17 April 2025 to 30 June 2025. His appointment letter was delivered to him on the date of the hearing. He acted again in July 2025.
He spoke to Mr Mashinini about the extension of his acting appointment since Mr Makatu acted for a period of nine months, while he was on for five months. He had an additional three months, which added to eight months, while the other employee acted for twelve months, but he was not consulted to find out if he was interested or not. Hence, that constituted an unfair labour practice. There was an inconsistency in the application of the policy. He has not acted for six months continuously; however, it happened with the other employee. He further submitted that the ELRC had previously ruled on a similar matter, where it was found that there was an unfair labour practice committed by the employer.
He submitted that he thought fairness meant the one who acted first should be the first to be considered.
The Applicant submitted that he was not approached in terms of acting, and he thought he was under the impression that the Department of Education would proceed as it had happened in 2024.
The policy says, the acting should be done on a rotational basis. No one complained about his performance, and in June 2024, the school performed at 44%; the results went down. The School Governing Body indicated that during his term, the school’s performance went down.
He submitted that the policy and the laws must be applied consistently. Upon realising that he was not appointed for term 2, he was under the impression that he still had six months of an acting period to equalise the acting with his other colleague. He believed that the policy was inconsistently applied, and he wanted the Department to follow the acting policy.
During cross-examination, it was put to the Applicant that the ruling mentioned was not an instruction from the ELRC, issued to the employer, but it was a settlement agreement entered into by the parties. He rebutted that, in his understanding, it was an instruction from the ELRC; the employer agreed, seeing that it was incorrectly done in terms of the policy.

Respondent’s case

Mr. Mashishi Phillemon Mogobe testified under oath that the policy on acting did not indicate that employees should act equally. There was no prejudice against the Applicant. The practice of the acting director was informed by the policy on the appointment of an employee; therefore, this did not amount to prejudice, but it was the policy.
The principal post at Sandowns had been vacant from January 2024. The Applicant acted from February to June 2024, while Mr Makatu acted from July to December 2024. Mr Makatu acted again in January 2025, and the Applicant acted from April to June 2025. In total, Mr Masala acted for a period of 11 months.
The policy did not indicate that the employees must act on equal terms. The policy only demonstrates that an employee would not act for more than 12 consecutive months. Mr Makatu did not act for a period of 12 consecutive months, but both the Applicant and the colleague acted interchangeably. Therefore, there was no breach of the policy as alluded to by the Applicant.
It was a prerequisite of the district director to appoint a suitable candidate; however, seniority was not part of the policy, or it is not in the policy.
During cross-examination, the Applicant asked how the post became vacant, and he respondent answered that the former school principal was promoted and joined the district in January 2024.
The Applicant put to the Respondent that he acted for five months, while the other colleague acted for 6 months. When the Applicant was supposed to return to acting, Mr Makatu was appointed. The Respondent’s witness rebutted that it was not about the number of months on how many one had acted, but the director’s authority, after applying his mind in terms of who should be appointed. There was nowhere in the policy where it suggested that acting should be rotational, or that months should be shared among employees.
He was asked if the director had the right to deviate from the policy, and he answered that it was incorrect; the uniformity was not about how many months. One person may act for twelve consecutive months. The acting director was consistent with the policy.
During cross-examination, the Respondent’s witness further stated that when Mr Masala was appointed to act, Mr Makatu was not consulted; the same approach was used to Mr Masala, and what was different in his case, and further rebutted that it was a prerequisite of the Respondent to appoint a suitable incumbent.

Analysis of evidence

Unfair labour practice means any unfair act or omission that arises between an employer and employee involving (a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for the reason relating to probation), or training of an employee relating to the provision of benefits to an employee.
During the narrowing down of issues, the Applicant stated that she would challenge the inconsistent application of the policy.
It is a common cause that both Mr Masala and Mr Makatu acted in the vacant post, as the school principal. It is also a common cause that the post is vacant.
It is a fact that there is a vacant post at Sandowns High School, and the Applicant acted as a school principal. He acted for a period of eight months, while his colleagues acted for a period of twelve months. He said he believed that they had to rotate with the other colleague; however, that was not the case. His colleague acted more than him.
The position is still vacant, and there is still an opportunity for him to act in the position; however, he has a dispute. Since one is still vacant, and he is still with the school, working as a deputy principal, he still has the opportunity to act. It was submitted that decision on acting appointment is the Respondent’s prerogative, and it is not a must that staff must rotate in their acting positions.
Mr Makatu acted for nine consecutive months, but his acting did not exceed twelve months, which could have been an issue had he acted for twelve consecutive months.
In the closing arguments, the Respondent submitted that there is an approved acting policy as per the Respondent’s bundle on page 12. The policy regulates the acting period in a higher position, not to exceed twelve calendar months. According to the new policy, the acting appointment is the Respondent’s prerogative. It is further submitted that the acting policy does not make a provision for the appointing authority to appoint based on seniority. Acting in a vacant post is not a right, but a prerogative of the manager to appoint whoever is deemed fit to act for a specific period.
The respondent further submitted that Mr Makatu acted for a period of twelve months, while the Applicant is sitting on 11 months, and by the end of the year, the Applicant would be sitting at twelve months. I do not see why the matter was referred while the post was still vacant, and when there were still acting opportunities within the school. The Respondent would appoint anyone as and when it deemed fit to do so.
In his closing arguments, the Applicant submitted that Mr Mashishi should be eliminated from the recruitment processes for Sandowns. He also wanted two months’ salary as a relief sought.
I find that the Applicant failed to prove an unfair conduct or omission by the Respondent. He chose to ignore the latest policy, and he relied on the old policy, which would also not make any difference since he would be closing his twelve months of acting by the end of the year. There was no need for the dispute, as the post is still vacant and the chances of him acting even more than he anticipated are huge.
The employees should not dictate what and how the Respondent should operate on acting vacancies since the Respondent has the prerogative to appoint anyone whom he deems fit for the work.
The referred dispute is an unfair labour dispute related to benefits. I do not see how the Applicant dragged Mr Mashishi into the current dispute, when he stated that Mr Mashishi should be excluded from all the recruitment processes for Sandown High.
I find that there was no inconsistency in the application of the policy, and there is no unfair conduct by the Respondent. The Applicant was afforded the opportunity to act in the vacant principal post.
Based on the evidence led by the Respondent and the Applicant, I find that there was no unfair labour practice committed by the Respondent. The Applicant was allowed to act, and the position is still vacant, and he still has the opportunity to act.