05 May 2026 – ELRC890-25/26 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT NGCOBO
IN THE MATTER BETWEEN
NAPTOSA OBO ZITO NTOMBOXOLO APPLICANT
AND
DEPARTMENT OF EDUCATION EASTERN CAPE RESPONDENT
CASE NO ELRC890-25/26 EC
DATE/S OF HEARING 09 MARCH 2026 & 10 APRIL 2026
DATE AWARD SUBMITTED 05 May 2026
NAME OF PANELIST SIZIWE GCAYI

SUMMARY : Labour Relations Act No 66 of 1995 – section 186(2) : Alleged unfair labour practice by the employer.

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

The arbitration hearing was held under the auspices of the ELRC. The Applicant declared a dispute in terms of section 186[2] of the Labour Relations Act 66 of 1995, as amended (LRA). The matter was held on 09 March 2026 & 10 April 2026 at Ngcobo department of Education offices at 09h00. Mr GM Zozi an official represented the Respondent. Mr Anton Adams an official from NAPTOSA represented the Applicant.
The proceedings were electronically and manually recorded.
The proceedings were conducted in English and there was Xhosa interpreter.
The parties were given up until 17 April 2026 to file their closing arguments with the Council and they complied. In penning this award their submissions were considered.

ISSUES TO BE DECIDED

I am required to determine whether the Respondent committed an unfair labour practice dispute against the Applicant, if yes, I must decide on the appropriate relief in terms of section 193 & 194 of the LRA.
BACKGROUND OF THE DISPUTE
The Applicant is employed as a school principal at Tsengiwe Primary school, Chris Hani East. She was offered the position after the recruitment process on volume 5 of 2021/2022. The position of school principal at Tsengiwe Primary school P2 was advertised in February 2022. On Bundle B page 13 the salary notch for P2 is R421 473-00. The Applicant was the successful candidate. She was offered a position of P2 school principal as per the advertisement. The Respondent remunerated the Applicant as a P1 school principal with a salary of R392 934-00.
The relief sought by the Applicant is compensation and to be placed on the correct salary notch P2.

SURVEY OF SUBMISSIONS AND ARGUMENTS
Employee’s case

The Applicant testified herself and called no other witness in support of her case. She testified as follows:
In July 2022 she was offered a position of P2 School principal at Tsengiwe Primary school. The salary for P2 school principal was R421 473-00.It was her evidence that Tsengiwe Primary school was advertised on an Open post bulletin for principals volume 5 of 21/22 as P2 .
Bundle A page 13, the appointment letter, was read on record. Bundle A page 33 was read on record. She maintained the Tsengiwe Primary school was P2. Bundle A page 16 dated 16 November 2021 reflects a P2 on grading of schools for Tsengiwe Primary school.
She never received any communication from the Respondent about the down grading of the school. It was her evidence that she reported to the circuit manager that she was incorrectly paid.
The circuit manager referred her to the HR section, she approached HR and she was advised to approach the Deputy director.
The Deputy Director informed her that she was correctly paid. She never received any written explanation from the Respondent. She further mentioned that she suffered financial prejudice.
The school has 4 educators. The School Governing Body [ SGB] never mentioned anything about upgrading or degrading of the school. The issue of incorrect salary affected her health.
She mentioned that she was attending doctors in Cala, she had panic attacks and the circuit manager Mr Khene was aware of her health issues.
The relief sought is to be placed on the correct salary notch P2. To be paid outstanding monies from the date of assumption, amounting to R121 799.00 Employer’s Case
The Respondent led the evidence of one witness. Ms Ndileka Benya [ Benya] testified as follows: She was in the employment of the Respondent holding a position of a Deputy Director. She also testified about her duties. It was her evidence that Tsengiwe Primary School had 3 posts in 2021, 2022, 2023. For school to be P2 it required 4-12 posts. For 3 posts it was P1.
Bundle A page 20 was read on record. It reflected P2 for Tsengiwe Primary school. She mentioned that it was an error. It was her evidence that there was an error on the bulletin. She maintained that there was an error in the appointment.
The school was P1. It was unfortunate that it was picked after all the steps had passed. She mentioned that the Applicant was informed verbally of the error.
The correct notch for the Applicant was corrected on the system.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
It is trite that the Applicant bears the onus to prove an unfair labour practice as defined in section 186(2) of the LRA on a balance of probabilities.
Section 23(1) of the Constitution Act 108 of 1996 provides that everyone has a right to fair labour practices. In NEHAWU v University of Cape Town (2003) BCLR 154 (CC) Ngcobo J held that “our Constitution is unique in constitutionalising the right to fair labour practice, but the concept is not defined in the Constitution. The concept of fair labour practice is incapable of precise definition. This problem is compounded by the tension between the interests of workers and interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor desirable to define this concept. The concept of a fair labour practice must be given content by the legislature and thereafter left to the meaning in the first instance, from the decisions of specialist tribunals including the LAC & the Labour Court. These courts and tribunals are responsible for overseeing the interpretation and application of the LRA, a statute which was enacted to give effect to section 23(1). In giving content to this concept the courts and tribunals will have to seek guidance from domestic and international experience. Domestic experience is reflected both in the equity based jurisprudence generated by the unfair labour practice provision of the 1956 LRA as well as the codification of the unfair labour practice in the LRA.”
The purpose of the LRA “is to advance economic development, social justice, labour peace and democratization of the workplace.” This is to be achieved by fulfilling its primary objects which includes giving effect to section 23 of the Constitution. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to an unfair labour practice.
Section 186(2) of the LRA reads as follows: “unfair labour practice involves any unfair act or omission that arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
It is common cause in these proceedings that the Applicant participated in the recruitment process for the principal post of Tsengiwe Primary School in 2022. It is also common cause that the post was for a P2 school. The Applicant was offered the position of the school principal P2 as per the letter of appointment.
It is also common cause that on Final Post Establishments 2022 bundle A page 22 , Tsengiwe was graded P2 and the document was signed by the Head of department on 16 November 2021. The ELRC Collective Agreement No 3 of 2006 on grading of schools provides that “ the salary level of a principal of a school is determined by the grading of a school, which is done in accordance with the number of educator posts allocated to a school in terms of national norms.” As per the evidence before the Council the grading of Tsengiwe at the time of the advertisement of the post was Grade 2 [ bundle A pg20.]
The argument of the Respondent is that starting in 2021 there were errors made by the head office. The errors continued with the advertisement of the post. They also continued with the letter of appointment. It was only on the persal system that they picked up the error when paying the Applicant her salary.
It is highly improbable that all employees did not pick up the errors, it was business as usual. I accept that mistakes do happen but not with sensitive information like this.
It was the evidence of the Respondent that the Applicant was correctly paid because the school is P1. Mr Zozi posed a question to Ms Benya if the arbitration award orders that the Applicant be paid as P2 what would be your comment? Ms Beya’s response was that the Applicant will be taken to a P2 school and will be paid the salary of a P2 school principal.
With this response it became clear to me that the Respondent can make means to rectify their conduct towards the Applicant, as it is unfair because this is continuous. The Applicant is still subjected to unfair labour practice by the Respondent.
Ms Benya even made examples in cases where school was previously P1 and upgraded to P2 and the School governing body was not happy with the current school principal, the posts were advertised and a new principal was appointed.
The previous school principal who was P1 was moved to a P1 school. This example supports the response she gave that the Applicant can be moved to a P2 school. At all times the Applicant knew that she was offered a promotion by the Respondent, even on her appointment letter Mr M Qwase [ Head of department] congratulated her on the promotion.
Ngcobo J in NEHAWU v University of Cape Town (2003) BCLR 154 (CC) states that “ what is fair depends upon the circumstances of a particular case and essentially involves a value judgment”.
What is placed before the Council by the Applicant is that the treatment she receives from the Respondent is unfair to the level that it has affected her health. The circuit manager is aware that she attends doctors at Cala.
For an employee to be offered a promotional post and it later transpires that it is not a promotional post because it does not fulfil all the requirements of the promotion.
This does not constitute fair conduct on the part of the Respondent. T
The defence by the Respondent that all of this was caused by human error does not change the unfairness that the Applicant is subjected to by them.
I find that the Respondent has committed a clear breach of the constitutional right of the Applicant. As indicated above the Applicant has a right to fair labour practice as guaranteed by section 23 of the Constitution.
Mr Adams for the Applicant argued that the Applicant be placed on the correct notch of P2 salary level as per her appointment letter. He also argued that the Applicant be paid the arrear salary from the date of the Applicant’s appointment being R121 799-00. This figure was not disputed by Mr Zozi.
I find that the Applicant has discharged the onus of proving that the Respondent committed an unfair labour practice against her on a balance of probabilities.

AWARD

The Respondent is ordered to place the Applicant on the correct P2 salary level with immediate effect.
The Respondent is ordered to pay the Applicant an amount of R121 799-00 [ One hundred and twenty-one thousand, seven hundred and ninety-nine rands only] within 21 calendar days of receiving this award. Signature: