06 July 2026 – ELRC803-25/26 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE MATTER BETWEEN
NAPTOSA OBO MBEKO GWAZA APPLICANT
AND
DEPARTMENT OF EDUCATION EASTERN CAPE 1ST RESPONDENT
SADTU OBO HAKO THABISA 2ND RESPONDENT

CASE NO ELRC803-25/26 EC
DATE/S OF HEARING 10 MARCH 2026 – 22 JUNE 2026
DATE AWARD SUBMITTED 06 JULY 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. The matter was held on 10 March 2026, 30 March 2026, 25 May 2026 & 22 June 2026 at Mthatha Department of Education offices at 09h00 and virtual platform. Mr Siyabonga Gashi an official represented the 1st Respondent [Department of Education Eastern Cape]. Mr Sivuyile Makunga an official from SADTU represented the 2nd Respondent [ Thabisa Hako]. Mr Anton Adams an official from NAPTOSA represented the Applicant – [ Mbeko Gwaza ]
The proceedings were electronically and manually recorded.
The proceedings were conducted in English and there was a Xhosa interpreter.
The parties were given up until 29 June 2026 to file their closing arguments with the Council and they complied. In penning down this award, their submissions were considered.

ISSUES TO BE DECIDED

I am required to determine whether an act of unfair labour practice relating to promotion was committed by the 1st Respondent to the Applicant, if yes, I must decide on the appropriate relief if any is applicable in terms of section 193 & 194 of the LRA.
BACKGROUND OF THE DISPUTE
The Applicant is employed by the 1st Respondent at Holy Cross Senior Secondary School.
This is a promotion dispute involving post no 797- volume 2 of 2025 being the departmental head of humanities for Holy Coss Senior Secondary School.
After the post was advertised, the Applicant, the second Respondent and other candidates applied for the post. The second Respondent was appointed as the head of department for humanities at Holy Cross Senior Secondary School.
The Applicant alleged that the application for the 2nd Respondent was incomplete. Her qualifications and SACE certificate were not certified as required by the advertisement.
The application for the 2nd Respondent was sifted out, but strange enough, she participated in the interviews and was appointed by the 1st Respondent.
The relief sought by the Applicant is the appointment of 2nd Respondent to be reviewed and setaside and for the whole recruitment process be redone.

SURVEY OF SUBMISSIONS AND ARGUMENTS
Employee’s case

The Applicant testified himself and called no other witness in support of his case. He testified as follows: He was in the employment of the 1st Respondent. He was appointed on 13 February 2018 as an educator. He had eight years work experience. He also mentioned his qualifications. It was his evidence that he was currently teaching geography, history, life orientation, social science grade 8 and History grade 10. He also mentioned his experience at Qumbu village which included teaching geography grade 10, history grade 10 & 12, tourism grade 11, life orientation and social science grade 9. It was his evidence that his application form was in order. It complied with the requirements of the advertisement for the post in question. Bundle A page 13 was read on record. In relation to the 2nd Respondent’s documents that they were not certified he learnt of this fact in October 2025 after her appointment. He mentioned that the application of the 2nd Respondent did not meet the requirements as per the bulletin. It was his evidence that he was shortlisted for the post in question. He participated in the interviews and was ranked no 2. He suffered prejudice by the shortlisting of the 2nd Respondent because, if she was not appointed, he would have been no 1 and would have been appointed.

1ST Respondent’s case

The 1st Respondent led evidence of one witness. Mr Wele Madikizela [‘ Madikizela’] testified as follows: He was in the employment of the 1st Respondent holding a position of a school principal at Holy Cross Senior Secondary School. He started teaching in 1992. In relation to the recruitment of the post in question, he mentioned that he was the resource person. Prior to the interviews he attended the workshop. It was conducted by the circuit managers Mr BZ Zoko and others. Bundle A page 3 & 5 were read on record. He also mentioned that they received 27 applications. They shortlisted six candidates. Annexure C page 1 read to the record, Hako T sifted out, ?. He mentioned that when he received the master list, he did not notice that the 2nd Respondent was sifted out. He only became aware when Mr Gwaza brought it to his attention. He summoned the panel for the interviews and made them aware of the issue. They were all shocked because they did not realise it. It was around October / November 2025 when he made the panel aware of the issue. On the relief sought by the Applicant, he mentioned that the school will be affected. The expertise of the 2nd Respondent at the school is of great value. The school will be negatively affected. There will be instability in the school.
2nd Respondents case.
The 2nd Respondent led evidence of one witness Ms Thabiso Hako [ ‘Hako’ ] She testified as follows: She was the educator at Holy Cross Senior Secondary School since June 2008 as a post level 1 educator. She has performed extremely well in her duties. She teaches history in grade 10,11 & 12. She receives 100% and distinctions (in what exactly?). In 2025 she applied for the post in question. She was invited for interviews, she attended and performed well. She was appointed to the position of the departmental head. She mentioned that she was not aware that her application was sifted out. She submitted certified documents on 23 May 2026 at Mthatha central. Bundle B was read on record. She also mentioned that she is currently a chief marker for the period 2025, 2026 and 2027. She denied that her application form was submitted with documents not incompliance with the advertisement.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act 66 of 1995 as amended (LRA) was committed by the 1st Respondent. The Applicant has to convince the arbitrator that the conduct of the 1st Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
I have considered the departmental guidelines for sifting, shortlisting and interview procedures.
I have also considered the recruitment and selection policy for the department of Education-Eastern-Cape.
I have also considered the bulletin for the post in question. Open post bulletin for deputy principals and departmental heads: volume 2 of 2025.
Section 186(2)(a) of the LRA reads as follows: “unfair labour practice 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 relating to the provision of benefits to an employee”.
I have to decide whether the 1st Respondent acted fairly or not in not appointing the Applicant for the position of the departmental head of humanities at Holy Cross Senior Secondary School.
In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17, the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.” The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016]
Section B of Volume 2 of 2025 (of?) provides that “Application forms are to be accompanied by all relevant documentation, completed EDP 01 application form and a detailed CV, certified copy of the South African Identity Document. Certified copies of all academic qualifications, which must include appropriate training as an educator. Certified copy of membership certificate with SACE / proof of application for registration / proof of deduction from the salary payslip”.
Section C of Volume 2 of 2025 (of?) provides that “ forms without all the relevant documentation will be discarded”.
It is common cause in these proceedings that in terms of Annexure C – Master list, the 2nd Respondent was sifted out during the screening and sifting process by human resource section. There was no valid explanation from Mr Madikizela how 2nd the Respondent was shortlisted. He could not explain.
There is no need for me to go into detail on the evidence of all witnesses for the simple reason that, on the last day of the proceedings of the 22nd June 2026 it became very clear that the 1st Respondent was no longer defending its decision on the appointment of the 2nd Respondent. This was demonstrated through cross-examination by Mr Gashi on Ms Hako.
I was not surprised when I received the closing arguments of the 1st Respondent – Mr Gashi conceding the process of the appointment of 2nd Respondent was irregular. On paragraph 4 of his closing arguments, he submitted that the department was satisfied that Ms Hako submitted documents that were not certified.
On paragraph 7 Gashi submitted that “the Department accepts that an unfair conduct was committed and prays for an order to re-advertise and start the process afresh.” It won’t assist to comment about the evidence of the 2nd Respondent because she did not appoint herself. She was appointed by the 1st Respondent, whom we know by now that they conceded her appointment was irregular.
The evidence presented by the Applicant before the Council was overwhelming on the unfair conduct of the 1st Respondent, it was not peculiar for Mr Gashi to argue in the manner that he did.
With all the evidence placed before the Council I conclude that the Applicant managed to discharge the onus placed on him. The conduct of the 1st Respondent amounted to unfair labour practice for the reasons highlighted above. In the result, the appointment of the 2nd Respondent into the position of departmental head of humanities at Holy Cross Senior Secondary School cannot be sustained and stands to be set aside as I hereby do set it aside. In the circumstances I hereby make the following award:
AWARD
I find that the conduct of the first Respondent amounted to unfair labour practice as intended in section 186 (2)(a) of the Labour Relations Act 66 of 1995.
The entire process that led to the appointment of the 2nd Respondent as the departmental head of humanities at Holy Cross Senior Secondary School is set aside and her appointment is set-aside.
The first Respondent hereby directed to start afresh the entire recruitment and selection process and appoint a selection panel comprising of different individuals/independent selection panel. Signature: