04 March 2026 -ELRC753-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC753-25/26GP

In the matter between

MPHO GRACE SENOELO Applicant

And

EDUCATION DEPARTMENT OF GAUTENG 1st Respondent
VINCENT MBOWENI 2nd Respondent

Applicant’s representative:
Ms M Boikhutso – Union Representatives

1st Respondent’s representative:
Mr G Mbonde – Labour Relations Specialist
2nd Respondent’s representative: In person

DETAILS OF THE HEARING AND REPRESENTATION
[1] This is an award in the arbitration between Mpho Grace Senoelo, the Applicant, and Education Department of Gauteng, the first Respondent, and Mr Vincent Mboweni, the second Respondent.
[2] The arbitration was held virtually under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(a)(iv) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA) and this award is issued in terms of section 138 (7) of the LRA.
[3] The arbitration hearing took place online on 20 November 2025 and on 6 February 2026.
[4] The Applicant was present and represented by Ms M Boikhutso (Boikhutso), her SADTU union representative.
[5] The first Respondent was represented by Mr G Mbonde (Mbonde), its Labour Relations Specialist. The second Respondent submitted that he aligned his case with the first Respondent’s case.
[6] Parties agreed to file written closing arguments by the 13 February 2026 and same received were considered in the analysis.
[7] The proceedings were digitally recorded.

BACKGROUND TO THE DISPUTE
[8] The Applicant referred an unfair labour practice related to promotion/appointment dispute to the ELRC.
[9] Parties concluded pre-arbitration minutes.
[10] It is common cause that the Applicant was permanently employed by the Respondent, currently earning R467 448.00 per annum.
[11] The Applicant applied and was shortlisted and interviewed for the advertised post of Deputy Principal, post level 3, at Ngaka Maseko Secondary School.
[12] She was not on the three (3) listed candidates recommended by the School Governing Body (SGB) for possible appointment.
[13] At the onset of the arbitration the parties clarified the issues in dispute stated in item 4 of the pre-arb minutes. It was whether the non-appointment of the Applicant was because of the unilateral decision of the Institutional Development and Support Officer (IDSO), Ms Judy Mashala, to appoint the second Respondent to act in the Deputy Principal post. The interview panel overlooked the Applicant’s academic qualifications, teaching experience and managerial and leadership skills.
[14] The Applicant sought to be appointed on the post and further asked to be awarded compensation.

ISSUE TO BE DECIDED

[15] I am called upon to determine whether the first Respondent committed an unfair labour practice related to promotion by not appointing the Applicant to the Deputy Principal post. at Ngaka Maseko Secondary School.
[16] If I find that the first Respondent committed an unfair labour practice related to promotion, I must determine the appropriate relief, otherwise the referral will be dismissed.

SURVEY OF THE EVIDENCE AND ARGUMENT

[17] Ms Boikhutso called two (2) witnesses, the Applicant and a second witness, and submitted a bundle of documents marked A (pages 1-62).
[18] Mr Mbonde called two (2) witnesses and submitted a bundle of documents marked R (pages 1-45). R2 (page 1-16) was added by agreement during the proceedings after the Applicant raised the issue of incorrect scoring.
Below is the summary of the evidence led.

APPLICANT’S CASE

First Witness – Ms Mpho Grace Senoelo (the Applicant)

[19] The Applicant testified that she had 20 years’ teaching experience, seven (7) years in managerial post as a Head of Department. She acted in the post of Deputy Principal for five (5) years.
[20] She was the suitable candidate for the post because of her qualifications. She had a Matric Certificate, Diploma in Education, registered with the South African Council of Educators, completed the Institute of Public Administration of South Africa training, Advanced Certificate in Education, Bachelor of Education Honours degree, Master of Education degree and currently registered for a Doctor of Education Degree.
[21] She was interviewed by the panel. Her challenge was the presence of the IDSO in the panel.
[22] There was nothing done by the IDSO, but she doubted the results of the interview panel, because the scores were not correct as they did not match with her qualifications and experience.
[23] She was scored 91 by the interviewing panel and the appointed candidate was scored 158, which showed a significant discrepancy in scoring and that she was not scored according to the criteria.
[24] The appointed candidate had six (6) years teaching experience which was far less than her 20 years’ experience. He did not have administration, leadership and management qualifications.
[25] Whereas she exceeded the requirements of the post in terms of management, leadership, and administration.
[26] The appointment was biased based on preference and favouritism instead of merit due to the presence of the IDSO at the interviews. Also, the precedent she set when she overlooked the Applicant and unilaterally appointed the second Respondent to act in the deputy principal post.
[27] The process was unfair and inconsistent, causing her emotional distress and loss of confidence.

Cross – examination

[28] During cross – examination the Applicant agreed that she was shortlisted based on her experience and qualifications.
[29] She did not dispute that the collective agreement regarding recruitment and placement was followed and the roles of the ISDO the SGB were aligned to it. Also, that the decision was aligned to Circular 9 of 2020 for the appointment of deputy principals.
[30] She contended that the process was flawed because of the presence of the IDSO.
[31] She testified that the scores were not given proper weight based on the criteria. She questioned the rational for the second Respondent’s interview score being 67 points more than hers. Also, that the three (3) recommended candidates did not match her management experience and qualifications.
[32] Although the observers, including her union SADTU, and SGB stated the process and scoring was fair and no grievance was lodged, she challenged its outcome. She doubted that the recommendation was based on the SGB due to the IDSO presence.
[33] The SGB recommendation, which she did not challenge, would be only valid if the process leading to it was fair.
[34] She did not want to comment about the minimum teaching experience for the deputy principal post and said that she was not concerned about the second Respondent’s experience. Her concern was the fairness and procedural integrity of the process and had evidence of material irregularities that affected the outcome.
[35] She agreed regarding the nature of the interview questions but questioned how the panel had assessed her answers.
Second Witness – Mr Finkie Sydney Sanyane (Sanyane)

[36] In summary, Mr Sanyane testified that he was the Applicant’s former colleague.
[37] The Applicant’s promotion dispute emanated from the IDSO taking over the Principal’s role in the appointment of the acting process for the Deputy Principal post.
[38] The Deputy Principal post appointment process was substantively unfair because of the IDSO’s conduct. She influenced the results by taking over the Principal’s role, briefing the panel and participated as an interview panel member. Her conduct influenced procedural fairness because the higher officials were misled in terms of the qualifications, skills and experience of the shortlisted candidates. The Applicant contested that the second Respondent did not have the same level or higher level of her skills.
[39] The panel was supposed to be composed of the Principal and the SGB. The Principal was not supposed to be a panel member but should have overseen the process.
[40] The collective agreement provision for a departmental representative to be an observer and resource person in the interview panel does not state that it should be the IDSO. The IDSO was not supposed to be there.
[41] The preceding provision enables anyone in the District Office to avail themselves for their own interests.
[42] The panel overlooked that the Applicant was the most qualified and experienced candidate.
[43] He had worked with both the Applicant and the second Respondent, and the Applicant was the best candidate for the post.

Cross – examination

[44] During cross examination he testified that he did no dispute that the Principal and the SGB constituted the interview panel, per policy. Also, that the HOD appointed on SGB recommendation, but it did not mean human shenanigans were to be ignored.
[45] He agreed that the District Director could appoint an IDSO. However, a different IDSO should have been appointed and not the one who had started the acting process in the wrong way. The appointed IDSO intended to impose whoever she wanted to be appointed.
[46] He did not have firsthand information on the appointment process because he was not present and not participate in the processes.
[47] He did not dispute the provisions of the collective agreement and policies regarding the process as put to him were followed by the Respondent. However, he believed that human shenanigans had to be addressed as those who think they have power were the problem.
[48] He did not dispute that the Employment Equity Plan stated that male Africans and male Indians were underrepresented in the deputy principals’ category, but the advert should have stated the preferred group.
[49] The provision in the vacancy circular that preference would be given to the underrepresented groups according to the Employment Equity Targets per Circular 9 of 2020 was supposed to address the national targets.

Re-Examination
[50] During re-examination, he testified that the policies were correct but someone who had thought she had power abused the power, leading to the Applicant’s non appointment.

FIRST RESPONDENT’S CASE

First witness: Ms Judith Bongani Mashala (Mashala)

[51] Ms Mashala testified that she was an IDSO in the Department of Education, appointed by the District Director, as the Department’s resource person in the Ngaka Maseko Secondary School Deputy Principal recruitment process.
[52] It would not be true that she did not treat the candidates fairly. She followed the precepts of the legislation. She had no personal interests as to who would be appointed but only sought an appointment which was in accordance with the interests of the school.
[53] Two (2) union representatives including one from NAPTOSA were present with her in the meeting.
[54] After the Applicant was interviewed, she was given an opportunity to comment and she did not express any dissatisfaction.
[55] No one expressed unhappiness about the recommended candidates when they were announced at the conclusion of the process, and no grievance was lodged by the unions.
[56] She believed the SGB recommended the second Respondent because he was a male and African males were an underrepresented groups according to the Implementation of Employment Equity Plan and were to be given preference where they met the requirements of the post.

Cross – Examination

[57] She testified that her responsibility was to develop and support the school she was overseeing.
[58] As a resource person in the interviews her role was to ensure that the process was conducted fairly, according to her duties stated in the Policy. She was overseeing the process.
[59] She clarified that after the panellists concluded the process she had to check if the documents were completed and send the document to Head Office.
[60] The minimum experience required for the post was five (5) years. The second Respondent had a Bachelor of Education degree with management as one of the subjects. A management qualification was not a requirement.
[61] She commented about the inadequacy of the Applicant’s responses to the questions she was asked and that she her answers were short.
[62] She further testified that both the Applicant and the second Respondent acted in the Deputy Principal post prior its filling. There was no circular for appointment for acting. It was management decision by the Principal in consultation with her as part of management.

Second witness: Mr Pilane Pelo (Pelo)

[63] Mr Pelo testified that he was the Ngaka Maseko Secondary School Principal. He was a panellist in the deputy principal post interviews as per policy.
[64] The resource person was appointed by the District Director.
[65] The Applicant did not express dissatisfaction after the interviews and there were no objections or grievance lodged by the observing unions.
[66] A management qualification was not a requirement according to the vacancy advert.
[67] African and Indian males were the underrepresented group in the deputy principal category according to the Employment Equity Plan and three (3) years targets, so the recommendation of the second Respondent was correct.
[68] According to Policy, the HOD takes the final decision based on SGB recommendation. The SGB did not recommend the Applicant.

Cross – Examination
[69] Mr Pelo testified that he took the decision on the acting appointment of the second Respondent in the vacant Deputy Principal position in consultation with the second Deputy Principal at the school.
[70] Both the second Respondent and the Applicant were appointed to act in the post.
[71] The Applicant’s answers on leadership, management and administration during interviews were brief and hurriedly presented.
[72] The management / leadership requirements listed on advert were not qualifications and not about the subject matter.
[73] He remarked that 25 percent covered those areas because they asked a number of questions on those areas.
[74] This was the same as the other deputy but she is slow in implementing directives from the Principal. The candidate qualifications were used for shortlisting
[75] He was informed that the Applicant was aggrieved about the process when she indicated that she was taking matter to the ELRC.
[76] He did not know what interference meant because he acted with the IDSO assistance and had to inform her on decisions.

Re – examination

[77] Mr Pelo testified that there was no undue influence by the IDSO in the interview process.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[78] Section 186(2)(a) of the LRA stipulates that an 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.
[79] This is a dispute relating to promotion. The Applicant had to demonstrate through evidence and argument that the first Respondent’s conduct in not appointing her to the deputy Principal position was unfair.
[80] It was undisputed that the P3 Deputy Principal post that the Applicant had applied for was a higher rank that carried greater status, responsibility, and authority. Meaning that the dispute is a promotion dispute envisaged in section 186(2)(a) of the LRA.
[81] It was common cause that the Applicant applied and was shortlisted and interviewed for the post, but she was not recommended by the SGB.
[82] The issues in dispute were identified as stated in paragraph 13 above.
[83] To discharge the onus, the Applicant and Mr Sanyane testified for the Applicant’s case. There were some inconsistencies in their testimonies here and there.
[84] Mr Sanyana, in the main gave hearsay testimony about the Deputy Principal post interview process, to which no weight can be attached.
[85] The Applicant and Mr Sanyane corroborated each other’s testimony that the presence of the IDSO in the panel was meant to assist with the appointing of the second Respondent that she had appointed to act in the post.
[86] Both however conceded during cross – examination that the presence of the IDSO in the interviews was according to policy allowed, as an observer and resource person for the Department.
[87] They also did not dispute that the interview panel, interviewed and scored the candidates, and that the SGB made recommendations for the appointment to the Head Office.
[88] Mr Mbonde on rebuttal called Mr Pelo the School Principal, and Ms Mashala the IDSO, panellist and resource person in the interviews, respectively. They were directly involved in the matter and in the main they were consistent in their testimonies.
[89] They supported each other’s testimony that the Acting appointment decision was done by the Principal in consultation with management.
[90] Also, that the Applicant had also been given an opportunity to act, which was not put to the witness but also not disputed in cross examination.
[91] The Applicant and Mr Sanyane’ testimony that the Applicant surpassed the second Respondent’s qualifications and experience years was not disputed.
[92] However, they conceded to the Respondent’s assertion during cross examination that experience and qualifications were considered for shortlisting.
[93] The Applicant and Mr Sanyane, although not in the pre -arb minutes and not stated at the onset of the arbitration, challenged the Applicant’s 91 score compared to the second Respondent’s 158.
[94] No evidence was led to show that the scores were not correct but that they perceived the score as not being correct, considering the Applicant’s experience and qualifications. Also, that the IDSO’ presence had influenced the scores.
[95] In rebuttal, the Respondent’s witnesses’ testimony corroborated the documentary evidence that the Applicant dd not provide adequate answers and was rated lower based on her answers. It was shown that the candidates were asked the same five (5) questions. Also, that management leadership and administration skills were tested and she fell short in her answers. There was no requirement for qualification for the same but skills for the post.
[96] Mr Pelo, during cross examination, on the question regarding the IDSO interference at the school, testified that he acted with the IDSO assistance and had to inform her on decisions if that was what interference meant.
[97] He matter-of-factly stated there was no undue influence by the IDSO in the interview process. There was no contrary evidence on behalf of the Applicant in this regard.
[98] Mr Sanyane and the Applicant’s contention that the Applicant was the best candidate for the post was based on her qualification and experience. Also, that with her administration, leadership and management qualifications she did not deserve the interview score that she got.
[99] On the other had the Respondent showed that the SGB recommendation was based on the interview performance scores and the Applicant was not listed in the three (3) recommended candidates but was in fourth place. Also, that the Employment Equity Plan underrepresented group which was shown to be African and Indian males was considered.
[100] The Applicant during cross examination had testified that she did not dispute that the second Respondent had the required minimum requirements for the post. Also did not dispute that the African males were the underrepresented group for the Deputy Principal category in the Employment Equity Plan.
[101] As part of her own testimony the Applicant said that there was nothing that the IDSO did, but she doubted the results considering her qualifications and experience.
[102] Considering that Mr Pelo and Ms Mashala denied that Ms Mashala had taken over the appointment of the acting Deputy Principal and that no further evidence was presented, the Respondent’s rebuttal must succeed in that respect.
[103] In terms of the interview process, the Applicant and Mr Sanyane’s contention was that there were procedural and substantive flaws in the process due to the IDSO influence.
[104] The Applicant did not discharge the evidentiary burden to show a link to her non-appointment and the IDSO’s presence at the hearing, nor flaws on the interview and appointment procedure.
[105] In line with Provincial Administration Western Cape (Department of Health & Social Services) v Bikwana & others (2002) 23 ILJ 761 (LC), I found no good cause was shown, to interfere with the managerial prerogative in this case in terms of the employment selection and appointment process.
[106] The Applicant did not discharge the onus to show there was bad faith or improper motive for her non appointment.
[107] The Applicant did not show on a balance of probabilities that there was unfair conduct relating to the appointment of the second Respondent for the post by the first Respondent.
[108] I find that the Applicant has not discharged the onus to prove that she was subjected to unfair labour practice related to promotion as contemplated in terms of s186 (2) (a) of the LRA.

I therefore make the following award:

AWARD
[109] The first Respondent, Department of Education Gauteng, did not commit an unfair labour practice relating to promotion as contemplated in terms of section 186 (2) (a) of the LRA, by not appointing the Applicant, Mpho Grace Senoelo, to the position of Deputy Principal at Ngaka Maseko Secondary School.
[110] The Applicant’s dispute referral is dismissed

Thus, done and signed at Johannesburg on 03 March 2026.