04 March 2026 -ELRC899-23/24

Commissioner: VEESLA SONI
Case No.: ELRC 899-23/24 Date of Award: 03 MARCH 2026

In the ARBITRATION between:

SIYANDA MABUNGANE APPLICANT
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL 1st RESPONDENT

ZANELE XABA 2nd RESPONDENT

Union/Applicant’s representative: Represented by an attorney
Mr L Sigwili

1st Respondent’s representative: Mr S Daniso

1st Respondent Department of Education

2nd Respondent : Zanele Xaba
2nd Respondent representative Ms Memela- SADTU

Details of the hearing and representation

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 4 March 2025, at Pietermaritzburg. The matter proceeded in terms of a jurisdictional ruling and was adjourned to: 26 May 2025.
There were several adjournments in the matter. On some occasions it was part heard and on some dates it was postponed, due to the unavailability of parties. The matter was eventually finalized on 16 February 2026. Closing arguments were delivered by 23 February 2026.
The Applicant, S Mabungane was represented by an attorney, Mr Sigwili. The 1st Respondent was represented by Mr S Daniso. The Appointee, hereinafter referred to as the 2nd Respondent, Ms Xaba, was represented by Ms Memela.

Issue to be decided

The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of promotion, when they failed to appoint the Applicant and appointed Ms Xaba.

Background and survey of evidence

The dispute relates to Post 690 advertised in HRM 5 of 2022 at Bhekuximba High School. Both parties were candidates to the post.
The 2nd Respondent was appointed to the post on 1 March 2024 after the ratification process.
The Applicant’s case was that there was a post advertised for a principalship at Bhekuximba High School. The Applicant applied for the post in February 2022. He was shortlisted and attended an interview on 25 June 2022. The Applicant was recommended for appointment to the post. The 1st Respondent failed to appoint him. The Applicant claimed that such conduct amounted to an unfair labour practice. The Applicant sought an appointment to the post. It was submitted that the conduct of the 1st Respondent was not in line with the Employment of Educators Act (hereinafter referred to as the Act).
The 1st Respondent’s case was that a selection process was conducted. During that process a grievance was lodged by the 2nd Respondent. The District Grievance Committee (DGC), appointed in terms of HRM 5 of 2022, heard the grievance. The Grievance Committee (GC) issued an outcome on 14 March 2023, which upheld the grievance. The 2nd recommendation was that the selection process had to be redone, from the stage of the appointment of new interview committee, by the SGB. The 3rd recommendation was that Governance and Management and the Human Resource Support Service had to provide training to the SGB. The 4th recommendation was that the circuit manager had to oversee the selection of a new committee and he was recommended as the resource person for the new selection. This process was undertaken as per the grievance outcome. This led to the second process whereby the 2nd Respondent was shortlisted, interviewed and appointed. She was ranked number 1. The ratification was done before the SGB and no grievance was lodged against the second process. The appointment of the 2nd Respondent was approved by the HOD.

Applicant’s case

Applicant: The Applicant testified that his dispute related to the post of a principal in Bhekuximba Secondary School. The post was advertised in February 2022, in terms of circular HRM 5/2022, post number 690. He was shortlisted and attended the interview conducted on or about 22 June 2022. In September 2022 there was a grievance to the post. There was a change in the closing date and he was unaware when the successful candidate assumed duty. He explained that at the stake holders meeting (on about June 2022) it was revealed that a post level 1 educator was to be appointed as the principal. The Applicant said he was the only post level 1 educator which implied that he was to be appointed. During the meetings, the acting principal, being the 2nd Respondent, made comments as to how he (the Applicant) could to be appointed and questioned why she was not shortlisted.
The Applicant said that he was recommended for appointment. He gained this information from the 2nd Respondent. The 2nd Respondent made utterances at meetings that the Applicant was recommended for appointment.
The Applicant explained that he lodged a dispute and at the pre-arbitration hearing the 1st and 2nd Respondent signed minutes, confirming that he was indeed the recommended candidate, in the first process. He was not appointed as a grievance was lodged by the 2nd Respondent, which was upheld. The grievance related to the constitutionality of the governing body whereby it was challenged that some of the members were not in good standing. The 2nd Respondent alleged that some of the members were coopted members. The matter was taken on review and the court issued an order setting aside the decision of the grievance committee to uphold the grievance by the 2nd Respondent. Despite this order the second process was undertaken and the 2nd Respondent was recommended in the second process.
The Applicant maintained that the court order set aside the finding of the grievance committee. As such, his recommendation for appointment in the first process should have been implemented. The Applicant was qualified for the post and met all the requirements. He was currently based at Imvunulo High School.

Respondent’s case

Xaba, the second Respondent stated she was with the department for 13 years. She was an acting principal at Bhekuximba High School, at the time of the advertisement of the post, and she applied for the post. She was not shortlisted in the first process and lodged a grievance. She said the recommendations of grievance committee was that the selection process had to be redone from the election of the new interview committee. In addition, training had to be provided to the SGB. The second process was undertaken and no grievance was lodged. Xaba said she went for the interview and thereafter received her letter of appointment. Xaba explained that organized labour, SADTU and NATU, were present during the second process and no concerns were raised.
Sicebi Thabethe: was the witness for the 1st Respondent. He was the principal for St John Paul High School and was the resource person for the post during the second process. He was an experienced resource person. The 2nd Respondent was shortlisted and not the Applicant. He confirmed he trained the SGB and IC before the shortlisting and interviews. Organized labour, namely SADTU and CTU/ATU, were present during the interviews and shortlisting. There were no objections from organized labour. The 2nd Respondent was recommended and there was no objection to her recommendation.

Analysis of evidence

The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (a) of the Labour Relations Act:
‘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.’
The onus is on an employee to prove that he/she is entitled to relief in terms of this section. In order to succeed under this section, an applicant needs to prove at least three things, namely:
• That the dispute which was referred does indeed concern conduct by the employer relating to “promotion” of the employee;
• That there was unfair conduct on the part of the employer during the promotion process;
• That the unfair conduct constituted an unfair labour practice and that she is entitled to the relief she seeks
The first leg of the enquiry was whether the dispute was indeed one of promotion and my finding is contained hereunder.

Is this dispute a promotion dispute?

There is a difference between a “promotion” dispute and an “appointment” dispute. Promotion disputes are arbitrated by the CCMA or Bargaining Councils as unfair labour practices in terms of section 186(2)(a) of the LRA, whereas appointment disputes cannot be arbitrated. At all relevant times the Applicant was employed by the 1st Respondent at Imvunulo High School. The dispute related to the appointment of a principal, being a higher post. In support of his argument he said the advertised post was indeed a promotion as it had significantly more benefits such as his salary and pension, which was higher than his substantive post.
Grogan (Grogan Dismissal, Discrimination & Unfair Labour Practices (2nd ed) 52) states that employees, like soldiers are promoted when they are “elevated to higher posts”. The Labour Court has defined promotion as being “elevated to a position that carries greater authority and status than the current position that the employee is in” (Mashegoane and another v University of the North [1998] 1 BLLR 73 (LC)
In the circumstances I am satisfied that the dispute before me involved a promotion dispute, in terms of section 186(2)(a) of the LRA. I now turn to the enquiry as to whether the conduct of the 1st Respondent was unfair.

Was any unfair conduct proved?

An employee who alleges that he or 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. The test to be adopted in promotion disputes is set out hereunder. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), the case related to the failure of the municipality to promote one M to an advertised post. The arbitrator found that it constituted an unfair labour practice not to have promoted M and ordered the municipality to promote him. On review it was argued that there was no evidence that the municipality acted in breach of its own policies or that it acted in bad faith, with an improper motive, malice or grossly unreasonably. It was further argued by reference to SAPS v Safety & Security Sectoral Bargaining Council & others (2010) 31 ILJ 2711 (LC), [2010] 8 BLLR 892 (LC) that it is not the place of an arbitrator to instruct an employer to promote a candidate into a position.
Arries v CCMA & others (2006) 27 ILJ 2324 (LC) set 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.
That the overall test is one of fairness and as per Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC) found that that a failure to promote which had no direct consequences for other citizens was not administrative action subject to the review test of unreasonableness:
“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.”
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 employer measured the fairness yardstick. At the outset I want to assess the evidence of the Applicant. He gave detailed evidence in respect of the entire process and focused specifically on the illegality and irregularity of the second interview process.
The Applicant’s dispute related to the post of a principal in Bhekuximba Secondary School. It was common cause that the post was advertised in February 2022, as per circular HRM 5/202 with post number 690. It was also common cause that the Applicant was shortlisted and attended the interview on or about 22 June 2022. He was recommended for appointment. He was not appointed as a grievance was lodged by the 2nd Respondent which was upheld. The matter was taken on review and the court issued an order setting aside the decision of the grievance committee to uphold the grievance by the 2nd Respondent. The Applicant detailed that despite the court order, setting aside the outcome of the grievance, the second process was undertaken and the 2nd Respondent was recommended and appointed.
It was the Applicant’s claim that the 2nd process should not have been undertaken as the court order upheld the finding from the 1st process. It was his argument that the second process was irregular and illegitimate. The Applicant argued for the setting aside of the second interview process, and that his recommendation for appointment (as per the first process) be confirmed.
The Applicant sought to enforce a court order through the process of the arbitration. This was clearly the incorrect platform for the enforcement of the court order. I must pause to state that the Applicant was not a party to the court order. The plaintiff in that matter was the SGB. The Applicant had no locus standi to have the said court order enforced hence the process was redone and the 2nd Respondent was appointed. Section 186 (2) of the LRA has no application in this regard. The Applicant has not raised any unfairness committed in the second process. His case was that the second process should not have occurred at all. I have no jurisdiction to implement a court order and set aside a process, especially when the said court order was sought by the SGB. In this instance the SGB obtained a court order that was not enforced.
The second process commenced, rightfully so, based on the recommendations of the grievance committee. If the order by the court was not enforced, there was no prohibition on convening a second process. The onus was on the Applicant to demonstrate that the appointment of the 2nd Respondent and the process surrounding such an appointment, was unfair. He failed to do so.
Irregular appointments or promotions are potentially unlawful. It was found in Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal [2013] ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC) that appointments made irregularly are not automatically null and void as the appointed candidate has labour rights. It was further held in this case that only a court can grant a “just and equitable” order in terms of section 172(1)(b) of the Constitution, when considering the consequences of declaring a decision unlawful. Until a court pronounces on the validity of the act (the appointment), the act exists in fact and has legal effect in terms of which its legal consequences will continue to exist. This would mean that the appointment or promotion, irrespective of the irregularities, would remain valid until and unless a court of law declares the action unlawful. Thus, when an applicant alleges that a conduct is unlawful (as opposed to unfair) the council has no jurisdiction to make any determination of unlawfulness.
Turning now to the Applicant’s contention that his employer’s conduct amounted to an unfair labour practice. The term ‘unfair labour practice’ is defined in section 186 (2) of the LRA. That definition makes no mention of any failure by an employer to implement a court order.
I accept that there was a recommendation by the SGB from the 1st process. This recommendation was not submitted to head office as there was a grievance. The recommendation can only be submitted once the grievance is resolved. The SGB must submit, in order of preference, to the Head of Department, a list of recommended candidates. The Head of Department considers the recommendation and then makes an appointment. In this case the Applicant’s recommendation was not submitted as it was interrupted by the grievance. In this regard, even if I had the power to implement the court order and set aside the second interview process, the Applicant was still not legible for appointment as it was not approved by the Head of Department. Arbitrators are not employers and do not have the power to make appointments.
Thabethe was a principal for St Johns High School and was the resource person for the second process. He was honest and gave his evidence in a forthright manner. He explained that the 2nd Respondent was shortlisted and not the Applicant. The SGB conducted the process. He explained that organised labour was present and there were no objections. The 2nd Respondent was recommended and he confirmed there was no objection to her recommendation. Under cross examination Thabethe confirmed he oversaw the election of the SGB for the second process. I must pause to state that this witness was not involved in the first process. He was only aware that a grievance was lodged for the 1st process. As such his evidence confirmed that the 2nd process was done in a fair and transparent manner.
One must remember that factors cannot be seen in isolation. Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The Applicant, was clearly aggrieved by the appointment of the 2nd Respondent, but failed to demonstrate that the 2nd process was unfair. I have no jurisdiction to enforce a court order, and more so, the Applicant was not a party to that court order. My role as an arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. In this regard I find that the 2nd process was conducted in a fair manner. The parties, to the court order, setting aside the decision of the GC, did not enforce such order. In any event, as stated, I would lack jurisdiction if I were to decide on the illegality of the 2nd process.
The onus rested on the Applicant to prove all the allegations on a balance of probabilities. Having evaluated all the evidence, I find that the probabilities favour the 1st Respondent. The test for whether something has been proved on a balance of probabilities, was whether the version of the party bearing the onus (in this case applicant), was more probable than not. The technique employed by courts and tribunals in resolving factual disputes involving two irreconcilable versions required findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In this case, there was no evidence before me to suggest that the 1st Respondent was unfair or biased or that the decision was arbitrary. The baseless suggestion that something sinister occurred, was therefore, with respect, absurd and amounts to no more than speculation. I am accordingly satisfied that the Applicant was not treated with prejudice or unfairness.
The arbitration of a promotion dispute does not entail a hearing de novo, but a review of the employer’s decision. In applying the Sidumo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair. An arbitrator or court is not the employer. It therefore is not the task of the arbitrator or a court to decide whether the employer has arrived at the correct decision. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. Where the employee complains that another employee was promoted, he or she must show that he or she has the necessary skills; and the person who was promoted does not possess the same or same level of skills. In this case the latter has not been proven.

Is applicant entitled to the relief he seeks?

The relief sought was for the appointment of the Applicant, as recommended in the first process. I find the Applicant was not entitled to such a relief as no unfairness has been established. the event that I am wrong in my finding that no unfair conduct was proved, then there is yet a further reason not to grant the relief sought by the Applicant. Even if an employee does succeed in proving unfair conduct in a promotion dispute, this does not mean that he has proved an unfair labour practice or that he is entitled to any relief.
The legal concept of unfairness cannot exist in abstraction. Therefore, an applicant in a promotion dispute also needs to establish a causal connection between the alleged irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post. In this regard, even though the Applicant was recommended in the first process, it did not guarantee his appointment, as such decision rested with the Head of Department.
In deciding on whether decisions not to promote constitute unfair labour practices, arbitrators must strike a balance between the employer’s prerogative and an employee’s right to be treated fairly. In this case I find that the Applicant has failed to discharge the onus vested upon him and I cannot grant the relief sought. Award
I make the following award:
The application is dismissed as the Applicant, Siyanda Mabungane, has failed to demonstrate that there was an unfair labour practice, by the Respondent, the Department of Education-KwaZulu Natal, in the appointment of the 2nd Respondent.