IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN POLOKWANE ON THE 14 AND 15 AUGUST 2025

Case Number: ELRC28-25/26LP
Date of Award: 02 September 2025

In the matter between: –

Rakgwale MM Applicant

And

Limpopo Department of Education First Respondent

Maswanganyi JM Second Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

1. The hearing was held on the 14 and 15 August 2025, at NTK building, Waterberg district, Modimolle.
2. The Applicant was represented by Ms. D. Reynecke, a union official from PSA, while the First Respondent was represented by Mr. ME. Nyathela, a labour relations official. The Second Respondent, Mr. JM Maswanganyi was present for the duration of the proceedings.
3. Both parties submitted bundle of documents which was admitted as evidence. The Applicant’s bundles were marked as “A1” and “A2”, while the Respondent’s bundle was marked as “R1”.
4. The proceedings were digitally recorded.
5. At the end of the hearing, parties undertook to submit written closing arguments by the 22 August 2025. I have since received detailed and insightful heads of arguments from the Applicant for which I am indebted. Same was considered in this award.

THE ISSUE IN DISPUTE

6. I must determine whether the First Respondent committed an unfair labour practice for failure to shortlist the Applicant. If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

7. The First Respondent advertised the position of Principal for Makhutjisha Secondary school in the district of Waterberg, Mookgophong township in the Limpopo Province through an open vacancy list. The vacancy list was issued on the 17 April 2024 with the closing date of 31 May 2024.
8. The School Governing Body subsequently shortlisted and interviewed candidates for appointment culminating in the appointment Mr. MJ Maswanganyi, the Second Respondent.
9. The Applicant, Ms. MM Rakgwale, referred an unfair labour dispute alleging that the First Respondent committed an unfair labour practice for failing to shortlist her when she was best qualified and more experienced in comparison to other shortlisted candidates.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT

MM RAKGWALE

10. Ms. Rakgwale testified under oath in English. The succinct summary of her evidence was as follows. That following the advertisement of the Principalship position in her school, she responded with an application.
11. That there were at least three different shortlisting process before the final shortlisting of 20 February 2025, wherein she was not shortlisted. That initially, the School governing body shortlisted her on the 18 July 2024, interviewed on the 26 July 2024 and recommended for appointment.
12. However, there was no appointment as the process was nullified after the First Respondent received grievances relating to the recruitment process.
13. Subsequently, on the 03 September 2024, she was again shortlisted and called for the interview. However, the Second Respondent, Mr. Maswanganyi lodged a dispute for failure to shortlist him, and the process was nullified.
14. That on the third shortlisting on the 24 September 2024, she was not shortlisted and she too lodged the dispute, and the process was nullified.
15. Finally, on the 13 February 2024, another round of shortlisting was conducted, and the Applicant was not shortlisted. The Applicant testified that at the time of the fourth round of shortlisting, her grievance remained unresolved, and she was not provided with reasons for not shortlisting her.
16. The Applicant further testified that of the five candidates that were shortlisted on the 13 February 2025, she was the second most suitably qualified by experience and qualifications, and that she was also eligible for shortlisting by virtue of being a female in terms circular 106 of 2024.
17. Further, that at least one person, one Mr. P. Mbadalinga participated in the SGB meeting that recommended the Second Respondent for appointment, which prejudiced her.

TI MAMABOLO

18. Mr. Mamabolo testified on behalf of the Applicant. Briefly, he testified that he was a member and secretary of the SGB. Further, that he participated in the election of co-opted members of the SGB, and his role was to verify eligible members of SGB being they could be co-opted. That, Messrs. Langa and Mbadalinga were found to be eligible for election into the SGB, and were thus co-opted pending their election. He further testified that the participation of Mr. Mbadalinga did not negatively affect the Applicant.

P MHLANGA

19. Mr. Mhlanga was the Applicant’s second and last witness. He testified that he was a member and Deputy Chairperson of the SGB, and that he participated in the meeting that co-opted Messrs. Langa and Mbadalinga into the SGB. He testified that the SGB agreed to co-opt Mr. Mbadalinga, and that he participated in the SGB meetings by virtue of his co-option.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT

PM MBADALINGA

20. The Respondent called only one witness, Mr. P Mbadalinga. He testified that he did not play any role in the shortlisting of candidates on the 13 February 2025, and that he only role was to attend a meeting wherein the Second Respondent was recommended for appointment by the SGB following his co-option on the 05 February 2025. He further testified that as a co-opted member he did not vote and that his presence did not prejudice the applicant.

ANALYSIS OF EVIDENCE AND ARGUMENTS

21. The issues for determination are simple and straightforward. The parties agreed in a pre-arbitration minute that the only issue for determination was whether the Respondent committed an unfair labour practice by failing to shortlist the Applicant. Further, the parties agreed that the Applicant only challenged the procedural fairness, and was seeking compensation in the event she was successful.
22. It is trite that in unfair labour dispute, the onus lies with the Applicant to prove the unfairness. In this case, the Applicant based her procedural challenge on at least three grounds. Firstly, the Applicant testified that she was the second most qualified by experience and qualifications of all the five shortlisted candidates, and previously acted as Principal, and met the minimum requirements for shortlisting by the SGB. She further testified that only one female was shortlisted, leaving one more space for a female candidate to be shortlisted in line with circular 106 of 2024. She further testified that the participation of one co-opted SGB member, Mr. P Mbadalinga played a role in her not being shortlisted.
23. The Respondent called only person to testify, and only challenged the process in as far as it relates to the co-option of Mr. Mbadalinga. The First Respondent’s case was briefly that Mr. Mbadalinga was well within his rights to participate in the SGB meetings with no voting powers, and that at the time he got involved the Applicant was already not shortlisted by members of the interview committee. It is common cause that Mr. Mbadalinga only participated in the SGB meeting that recommended the Second Respondent for appointment to the Principal, and was not part of the shortlisting or interviewing committee. Accordingly, the Applicant’s case cannot be sustained on the basis of the participation of Mr. Mbadalinga as he played no role in the failure to shortlist the Applicant.
24. The Applicant, rightly so in my view, abandoned her case for substantive fairness when it appeared apparent that she may not necessarily be able to prove that had she been shortlisted she would have been the most suitable of all the candidates for appointment. Her case, briefly, is simply that she should have been shortlisted as she was the second most qualified and experienced.
25. The First Respondent did not challenge the Applicant’s case to the extent that she ought to have been shortlisted, save to challenge that she wasn’t the most suitable for appointment. Put differently, the First Respondent conceded indirectly that the Applicant ought to have been shortlisted but nonetheless the most suitable candidate was appointed, being the Second Respondent.
26. Given the route I take here; it is not necessary to set out the qualifications and experience of the Applicant in contrast to those of the other shortlisted candidates, safe to record that it was not in dispute that the Applicant was suitably qualified and more experienced than at least three shortlisted candidates. Accordingly, the First Respondent simply did not challenge the procedural unfairness that was committed against the Applicant. By way of illustration, the Applicant was shortlisted at least twice, which is prima facie proof that she met the minimum requirements for shortlisting and was suitable qualified. However, on the third and fourth shortlisting, she was not shortlisted with no reasons provided. It was apparent on the record that the less qualified and experienced candidates were shortlisted ahead of her. The closest to a reason for her non-shortlisting appears on page 29 of “R1” wherein the secretary of the SGB commented that “only one candidate from the under-represented group met the requirements”. It is common cause that the Applicant falls within the definition of the underrepresented group in terms of circular 106 of 2024 and yet she was not shortlisted despite not only meeting minimum requirements, she was also the second best qualified candidates by experience, having acted as Principal previously, and also holding the position of Deputy Principal.
27. Accordingly, I am satisfied that the Respondent committed an unfair labour practice against the Applicant for failure to shortlist her when she was adequately qualified and experienced for no apparent reason, given that she was previously shortlisted at least twice in the same recruitment process.
28. The Applicant prayed for maximum compensation of 12 months in the event she was successful. The Respondent, on the contrary, pleaded that compensation be capped at least 10 months.
29. Section 194(1) of the LRA provides for no more than 12 months’ compensation for procedural unfairness.
30. I must now determine the just and equitable compensation. Clause 71 of the ELRC collective agreement 3 of 2016 provides that “where an arbitrator decides to award compensation, and the Applicant has not demonstrated that he was the best of all candidates, then compensation is solely aimed at compensating the employee for non-patrimonial loss. Where the loss in an unfair labour practice dispute is of a non-patrimonial nature, compensation is in the form of solatium for the loss of a right, or put differently, to compensate for the injuria of being treated unfairly.
31. Clause 76 of the same agreement provides that, “currently, awards of compensation intended as solatium for serious infringements range from R5000.00 to R20 000.00. In cases where the employee was discriminated against unfairly during promotion process, awards higher than R20 000.00 could be considered, but generally not more than R50 000.00. In cases that cannot be regarded as serious, but nevertheless not trivial, compensation of up to R5000.00 can be considered provided the Applicant was prejudiced”
32. In my view, in this case the Applicant was prejudiced for the following brief reasons. Firstly, the Applicant met the minimum requirements for shortlisting, and was shortlisted, interviewed and recommended for appointment before the first process was nullified. Put differently, the Applicant would have been appointed but for the nullifying of the initial shortlisting and interview process. Secondly, the Applicant was shortlisted for the second time, which process was halted again. The Applicant was not shortlisted in the third and final process without any reasons, despite still being the second best qualified and experienced of all shortlisted candidates.
33. The prejudice suffered by the Applicant cannot be said to be trivial given the nature of the position of the Principalship as well as the First Respondent’s handling of the shortlisting process, which was unfair.
34. The unfair treatment in this case warrant an order that not only serves as solatium to the injured feelings of the Applicant but also send a clear message that unfair procedures will be sanctioned.
35. Having regard to section 194 of the LRA on compensation, the collective agreement and the nature of the procedural irregularities in this case, it is my considered view that a compensation of R50 000.00 once-off would be just and equitable as solatium for the injured feelings of the Applicant.

AWARD

36. I therefore make the following order
37. That the Respondent, Limpopo Department of Education is ordered to pay the Applicant, Ms. MM Rakgwale an amount of R50 000.00 in solatium on or before 15 October 2025.
38. There is no order as costs.

Commissioner Mathekga