05 June 2026 – ELRC912-25/26KZN

Commissioner: VEESLA SONI
Case No.: ELRC912-25/26KZN Date of Award: 5 June 2026

In the ARBITRATION between:

SIMANGELE MADLALA APPLICANT
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL RESPONDENT

Union/Applicant’s representative:   Mr Makhanya- NEHAWU
    083 9666 816

Respondent’s representative: Mr Itumeleng Makhooe
Respondent Department of Education

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 2 February 2026, via M S Teams. The matter was part heard and was finalized on 2 June 2026.
The Applicant, Simangele Madlala, was represented by Mr Makhanya from NEHAWU. The Respondent was represented by Itumeleng Makhooe.

Issue to be decided

The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of an omission.

Background and survey of evidence

The Applicant was appointed as a grade R educator at Sibonginhlanhla Primary School and was currently in the same position. She was at post level 1 and was appointed from June 2016 on a temporary basis. Her contract was renewed on a yearly basis. The Applicant’s salary per month was R 10 458-00.
The Applicant was employed on a temporary basis and was to be converted on a permanent basis. In terms of Circular, HRM 40 of 2024, the Applicant was to be absorbed and made permanent. This was not affected by the Respondent and as such she was not afforded her benefits.
The Respondent’s case was that the onus rested on the Applicant to establish that she was entitled to the benefits, specifically that she be converted to a permanent position. The issue of conversion was governed by policy and it was independent to benefits. In this case the Applicant was not entitled to such or any benefit.

APPLICANT’S CASE

Applicant: was a grade R teacher at Sibonginhlanhla Primary School for the last 10 years. She had a diploma in grade R and an advanced certificate in foundation phase teaching, NQF level 6 and an advanced diploma in Education in School Leadership and Management, NQF level 7. She became aware that she should have been absorbed as a permanent grade R teacher in October 2025, as per circular 40 of 2024. The grade R teachers were absorbed into permanent posts in their schools, when posts became available.
In terms of section 3.2 of the aforesaid circular: Absorption of Grade R and Temporary Educators into permanent posts. This circular was a directive for grade R educators to be absorbed into permanent posts. This circular was not implemented in her school.
The Applicant stated that if she was not absorbed in a permanent position, she was unable to grow professionally and was not entitled to the benefits like medical aid etcetera. There were no reasons furnished for not absorbing her. There was communication with the school principal for her absorption, but the principal stated that it should have been the Respondent that attended to her absorption. She had REQV 14 qualification, which was equivalent to a degree. She was not only involved in teaching but also fund raising and assisting learners.

RESPONDENT’S CASE

Mrs Sithole: principal of Sibonginhlanhla Primary School since 2014. She knew the Applicant as a grade R practitioner in her school. The Applicant was employed as a grade R practitioner on a year-to-year contract, as from 2016. There were grade R educators that were state paid and employed permanently. The grade R practitioners were employed on an annual basis, based on contract. They were also paid by the department, but their employment was contract based.
HRM 40/2024: “the procedure contains three categories by which the staffing of schools may be accomplished. they are as follows: 3.1 Placement of all educators identified as additional in the base year (2024) and as well as placement of additional educators identified in schools where there has been a significant drop in enrolment for 2025. In line with PELRC Collective Agreement 1 of 2017, the base year began in 2024 and hereafter every 4th year until further notice.
3.2 Absorption of Grade R and Temporary Educators into permanent posts.
3.3 First Time Appointments (Educators seeking employment for the First Time).”
If there were surplus educators and if a school had a substantive post, that educator must be placed in the post, but the educator must be qualified. From 2023, the school had no available substantive foundation phase posts. The priority went to surplus educators from other schools. The second priority was the absorption of grade R and temporary educators. Lastly, the first-time appointments had to be considered.
Sithole stated that no practitioners or educators were absorbed by the Department in terms of the above circular. In 2023 two educators were appointed by the department in the intermediate and senior phase. One post was temporary as one educator went on retirement. One was appointed in a permanent position in the intermediate/senior phase as that post was available.
In 2024, the post provisions norms (also called PPN) decreased from 25 to 20. This was declared to the department that there were (5) surplus educators. She managed to absorb 2 out of the 5 surplus educators.
In 2025 there was one educator that went on retirement. The new PPN decreased by 1 hence she lost another post.
Sithole stated that the Applicant was not a suitable candidate as the post that was available in 2023 was for the intermediate phase. The Applicant had a qualification only for the foundation phase hence she could not be absorbed as there were no posts available. She explained that as of 2026 she had two other people as well as the Applicant, all in the same position, which were not absorbed.
She denied that other grade R educators and first-time appointments were absorbed by her or the department. There was just one appointment, and the Applicant did not qualify for it.
HRM 38 of 2025: related to the staffing of the school. In that circular there were no references to grade R practitioners or educators as a priority. Priority number 1: priority must be given to all educators identified as additional educators. Priority 2: conversion of temporary educators. Priority 3: first time appointments. There were no available posts in the foundation phase hence no appointments were made.
HRM 40 of 2024: The Applicant could not have relied on this circular for appointment as she was a practitioner and not an educator.

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 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.’
The onus is on an employee to prove that 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 “benefits” of the employee;
• That there was unfair conduct on the part of the employer in that the benefit was not granted;
• That unfair conduct constituted an unfair labour practice and that she is entitled to the relief she seeks.

WAS ANY UNFAIR CONDUCT PROVED?

An employee who alleges that 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) 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. Fairness is to be applied to all unfair labour practice cases, including benefits.
Applicant was a grade R teacher at Sibonginhlanhla Primary School for the last 10 years. She had the necessary qualifications being a diploma in grade R and an advanced certificate in foundation phase teaching, NQF level 6 and an advance diploma in Education in School Leadership and Management, NQF level 7. The Applicant maintained that grade R teachers were absorbed into permanent posts in their schools, when posts became available. In terms of section 3.2 of the aforesaid circular, it was a directive for grade R educators to be absorbed into permanent posts. The Applicant claimed that this circular was not implemented in her school. The Applicant stated that if she was not absorbed into a permanent position, she would not progress. She further claimed that no reasons were furnished to her for not being absorbed.
I turn to the circular and the relevant clause, being clause 3, which states: the procedure contains three categories by which the staffing of schools may be accomplished. They are as follows:
3.1 Placement of all educators identified as additional in the base year (2024) and as well as placement of additional educators identified in schools where there has been a significant drop in enrolment for 2025. In line with PELRC Collective Agreement 1 of 2017, the base year began in 2024 and hereafter every 4th year until further notice.
3.2 Absorption of Grade R and Temporary Educators into permanent posts.
3.3 First Time Appointments (Educators seeking employment for the First Time).
There can be no appointment to a post if there was no vacant post. This was not disputed by the Applicant. It was conceded by the Applicant under cross examination that she was not the only grade R teacher, in her school that was not appointed.
Human Resource Management (HRM) circulars issued by Department of Education are mandatory directives that schools must comply with. These documents are based on labour legislation and collective agreements, and it is aimed to dictate procedures for recruitment, staffing, and staff management. Non-compliance with HRM circulars, policies, or procedures can constitute an unfair labour practice (ULP) if the deviation is unfair, irrational, or prejudicial to an employee regarding promotion, demotion, training, benefits, or disciplinary action. My role is to determine if there was any unfair conduct committed by the Respondent by not complying with the circular.
Sithole, who was the principal of the school, provided evidence for the Respondent. She explained that the Applicant was appointed as a grade R practitioner. The practitioners were appointed in term of contract, and the grade R educators were appointed in permanent posts. Both educators and practitioners attended to the same duties. In this case the Applicant had qualifications for the foundation phase and there were no permanent posts in the foundation phase. The only available permanent posts were intermediate, and the Applicant could not be recommended for appointment in such posts. Intermediate phase was from grade 4 to grade 7. Foundation was from grade R to grade 3. There were no permanent posts available for foundation hence the Applicant could not be recommended for appointment.
In terms of the circular, the school had to have a substantive post available for absorption. In this case none was available for the appointment in the phase in which the Applicant had the qualification (foundation). In 2024, as per the evidence of Sithole, there was an appointment of a deputy principal. In 2025 and 2026 there were no absorptions or appointments.
Sithole said she did not have a post available in 2024 for the absorption of the Applicant. In this regard I find that there was no non- fulfilment or non-compliance with the HRM circular. I accept that Sithole can make a recommendation for the appointment of the Applicant, but such recommendation can only be implemented if there was an available post. One must remember that there is no such thing as an unfettered discretion. In this regard, Section 186(2)(a) of the LRA reads: ‘’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 or training of an employee or relating to the provision of benefits to an employee”. With the non-absorption of the Applicant, as a permanent educator, in casu thus being a benefit, the discretion to be exercised by the Employer in awarding or not awarding such a benefit is subject to scrutiny. In doing so my role is to consider what is fair and under what circumstances the exercise of the discretion could indeed be seen to be unfair.
A discretion would not have been exercised fairly if not judicially exercised and in particular had been influenced by wrong principles or a misdirection on the facts, or a decision is reached which could not reasonably have been made, having properly directed itself to all the relevant facts and principles. In this case Sithole stated that she had, as of 2026, two other people as well as the Applicant, all in the same position, that were not absorbed. There was clearly no unfair treatment.
FINDING: The reasons for not appointing the Applicant in a permanent post was not irrational, capricious, grossly unreasonable or mala fide and contrary to Apollo Tyres, there was no shifting of the goalposts. The Employer simply applied the same criteria and considerations. The discretion was done in a fair manner, and I am thus reluctant to interfere with the exercise of a discretion, unless such was exercised in a manner which shows a failure to meet an objective standard and this may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended. In this instance Sithole even conceded that she felt bad for the Applicant as she was on contract for a substantial time. However, the decision to appoint was based on prescripts. There was no substantive post, and the principal of the school was not the decision maker and could not appoint if there were no available posts. There was never a vacancy in the foundation phase hence it was not possible for the Applicant to have been absorbed.
These 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, through her evidence did not demonstrate that she was treated with prejudice. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not absorbed. After having evaluated all the evidence, the Applicant was unable to demonstrate that there was conduct that denied her a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason. I find there was no unfair labour practice. Award
I make the following award:
The application is dismissed as I find that there was no unfair labour practice committed.