06 May 2026 – ELRC896-25/26GP

ARBITRATION
AWARD

Panelist: Sally-Jean Pabst
Case No.: ELRC896-25/26GP
Date of Award: 6 May 2026

In the ARBITRATION between:

SADTU obo MS Maditaba Paulina SETLHARE
(Union / Applicant)

and

GAUTENG DEPARTMENT OF EDUCATION
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This dispute was referred to the Education Labour Relations Council (the ELRC) in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) – that of an alleged unfair labour practice relating to promotion.
The Applicant, Ms Maditaba Setlhare, was present and represented by her SADTU union official, Mr Paul Mokoena. The Respondent, the Gauteng Department of Education, was represented by Mr Ntuweleni Mudau.
The arbitration was conducted on 17 March 2026 and 15 April 2026, virtually via Teams, and recorded with a dictaphone. The parties each submitted a bundle of evidence, to which all was agreed by the parties that the contents are what it purports to be.
BACKGROUND / COMMON CAUSE FACTS
The Applicant, Ms Setlhare, is in the employ of the Respondent, the Gauteng Department of Education, since 2008, and she is currently a Post Level 1 Educator at Tokelo Secondary School in the Sedibeng West education district of Gauteng.
Ms Setlhare applied for promotion post number SW25ED1054 Head of Department (HOD) Mathematics 8-12 and Physical Sciences 10-12 at Tokelo Secondary School as in Circular 02 of 2025.
The Applicant does not wish for the appointment of the incumbent, made on 1 October 2025, to be set aside, and therefore the incumbent was not joined as a second respondent. The Applicant wishes for compensation for the alleged unfair labour practice – promotion – in terms of the fact that her application was sifted out and not shortlisted.
ISSUE TO BE DECIDED
I have to determine on a balance of probabilities whether the Respondent subjected the Applicant to an unfair labour practice in terms of promotion as defined in section 182(2)(a) of the LRA.
If an unfair labour practice is confirmed, I must determine the appropriate remedy in terms of LRA section 193, read with section 194, of the LRA, in light of the Applicant’s wish for compensation in relief.
SURVEY OF EVIDENCE AND ARGUMENT
In terms of section 138(1) of the LRA I conducted the arbitration in a manner that I considered appropriate in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities. In terms of s138(7)(a) of the LRA I therefore only include evidence I found particularly relevant in making a decision on the matter, by means of a brief summary.
Applicant’s Evidence
The Applicant, Ms Maditaba Setlhare, testified under oath that her contention of an unfair labour practice emanates from the Respondent not including her (not sifting her in) as candidate to be interviewed for the post in Circular 02 of 2025 – HOD Mathematics 8-12 and Physical Sciences 10-12 Tokelo Secondary School.
She acted in the position since April 2025, and has an exemplary teaching record including exceptional improvements of Grade 12 results with extra study classes and events she facilitated for the learners.
When irregularities in the sifting process had been confirmed in response to her grievance on not being shortlisted, the Respondent failed to investigate the admitted irregularities – “inconsistencies in the scoring process” as per grievance outcome dated 19 June 2025 – and failed to rectify these to include her for consideration and possible appointment. Subsequently, she received a further grievance outcome dated 29 August 2025 advising her that, at shortlisting for the post, her application was “disqualified for not being able to meet the cut off score” and her “grievance was unsubstantiated and therefore dismissed on the basis that your application form did not meet the cut off score”. The Applicant disputed the fairness of the format of the application form – that she was particularly prejudiced by the limited spaces given to list provided answers in item 8 and item 10 where space for only 2 and 3 things was provided, leading her to only list according to the number of spaces, although the criteria requires more items to be listed.
The Respondent’s version was put to Ms Setlhare as being that the successful candidate had to be qualified and experienced in both Mathematics and Physical Science alike, and that the post had been accordingly advertised. The Applicant responded that, although the panel must be guided by the advert, the panel must also know the needs of the school and what the appointed person must do. She expressed her view as being that Physical Science as a heavily weighted requirement in terms of the post-advertisement was inappropriate because fewer learners in Tokelo Secondary School require Physical Science than her field of expertise of Mathematics and Life Science. Ms Setlhare set out the numbers of learners taking the respective subjects in explanation, to which the Respondent, despite disagreeing, failed to contradict her statistics with its own.
The Applicant explained that she acted in the position she applied for prior to her application, but was sifted out in terms of having scored below the cut-off score required. Her grievance raised concerning irregularities in the scoring for sifting process, and these were even confirmed as substantiated in writing via letter from the Respondent. Regardless, she was nevertheless not provided with an opportunity to be correctly scored to be shortlisted and interviewed – the process continued, interviews without her, and the incumbent was appointed.
During cross examination of the Applicant, she was taken through her own (GDE2R) Application form, and it was pointed out to her that her score of 156 does not compare favourably to the cut-off score of 212, and how not having Physical Science affected her score. The Applicant explained that she disagrees with the prioritising of Physical Science in the scoring of candidates – this so because she believes there are too many Physical Science teachers in Tokelo Secondary School (the school) already. In fact, she avers, the incumbent was not even allocated Physical Science to teach subsequent to his appointment, because there was no need for another Physical Science teacher. That the over-prioritising of Physical Sciences unfairly prejudiced her in comparison to the incumbent, whereas Ms Setlhare then provided numbers of learners requiring to be taught the various subjects in question, in corroboration of her contention that the panel did not properly apply its mind during scoring to the actual needs of the school.
Respondent’s Evidence
The case of the Respondent was testified to under oath by 3 witnesses. During the attested evidence of the Respondent’s first witness, Mr Mokuoane Moeketse – the school Principal of Tokelo Secondary School, it was explained by the witness that this was not a ‘new post’ – that at the retirement of the previous incumbent to the post, the same post requirements as set out in the advert was in fact copied over from the previous advert for this exact same post, which is how it was intended to be, and correctly so. Further that the post was only vacant for a short period, from about March 2025, and during its vacancy the Applicant and others were given fair opportunity to act before the post was filled at the beginning of October 2025. That, regarding the Applicant’s contention that there is an over-supply of Physical Science teachers in the school is something that may fluctuate – that the need for educators in important subjects such as languages and sciences is sometimes more, sometimes less, but oversupply is never deliberate, and that the marks achieved by learners is what guides the school on whether there is a greater need in any one subject. Mr Moeketse commended the Applicant for her exemplary work and her success in achieving better marks by means of extra classes and extra tutorial opportunities for learners of the school.
The criteria for sifting were discussed, and the inconsistencies in the scoring of candidates in evidence were pointed out and conceded to by the witness. Mr Moeketse pointed out that, naturally, people’s scores would differ, but for the most they should be fairly consistent as being correct. He referred to avoiding ‘yawning’ scoring as scores varying too widely to the exact same evidence. Mr Moeketse explained that the process of sifting was redone to rectify, and that he considers the excessive variance to have been rectified. Whether the criteria for sifting were consistent with the needs of the school, the witness responded that any one set of criteria cannot reasonably include all the skills of all candidates, because there are so many to consider. That nationally in our country, mathematics and science is absolutely prioritised in schools, and therefore what is listed is what he agrees should be considered most relevant to the post, and the needs of the school.
The second witness of the Responent, Mr Keitumetse Lenoge, testified under oath that he is the SGB Secretary and was a panel member for scoring for sifting in this post. The witness agreed that shortlisting had to be done over during the recruitment process for this particular post. He conceded that they did not attend training for the scoring and interviewing – that only the school principal attended the training. Also that, the second time they sifted, they had indeed already seen all the application forms, but he retorted that they made sure to do this in a manner that no one individual candidate is prejudiced or favoured. The witness conceded that even in the second (redone) sifting, there were many ‘oversights’ – candidates including the Applicant underscored – particularly even his own scoring was still the second time even wrong or calculated incorrectly, in various instances. However, he attributes this to the very many applications the sifting panel had to work through which ‘overwhelmed’ them. Nevertheless, he disputes that any one person was given preference. The witness believes verily that the Respondent, in placing the advert for the post, did consider fully the needs of the school with regards to subject-choices prioritised.
The evidence of the Respondent party, through the testimony of this witness, concluded that if scored correctly in terms of the criteria applied together with an agreed example of a correctly-scored form, the Applicant might well have moved up on the ranking from position 17 to position 11 – nevertheless far from the top-5 required position for shortlisting. Also, having done the exact same exercise with the application-form of the incumbent, if the incumbent had also been provided more space to list things in item 8 and item 10 where space for only 2 and 3 items was provided, and if calculations had been done correctly, similarly the incumbent would have scored higher than he had.
The third witness of the Respondent, Ms Goitsemang Mohlathe, testified under oath that she is the acting Assistant Director of HR, that she oversees recruitment and selection provisioning and also conducts training of panels and SGB’s. The witness testified to the format of the application forms – regarding the limited space to list things in item 8 and item 10 – that there is actually no rule in the form’s instruction-section stating one may not list more things than space is provided for. However, the Applicant and the incumbent both similarly listed only according to the number of spaces provided, and the incumbent was therefore not given an unfair advantage over others including the Applicant Ms Setlhare. This was not disputed by the Applicant party during cross examination.

ANALYSIS OF EVIDENCE AND ARGUMENT

I have considered all the evidence and argument lead by the parties in coming to my decision on this matter. The Applicant is claiming an unfair labour practice by the Respondent in terms of 186(2)(a) of the LRA regarding promotion:
“(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) 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 LRA requires employers to treat their employees with fairness when they apply for promotion. An employee who alleges to be the victim of an unfair labour practice bears the onus of proving all of the elements of the claim on a balance of probabilities.
It is common cause that Ms Setlhare was unsuccessful after applying for the promotion post of HOD of Mathematics 8-12 and Physical Sciences 10-12 at Tokelo Secondary School. The Applicant in this matter must prove not only the presence of a labour practice, but also that the labour practice was unfair conduct by the Respondent.
Ms Setlhare denounced her allocated score at sifting, and during testimony and cross examination of the Respondent’s witnesses it was established that indeed she had been scored too low. However, it was similarly established that most all of the candidates whose forms were in the bundle had been scored incorrectly to a more or lesser extent.
In coming to this the Respondent had, on the record, established the most-correctly scored form, and used this as a template to conduct a careful recalculation of scores during the leading of evidence by witnesses. This showed that even with the Applicant’s corrected score placing her at number 11 as opposed to number 17 which she had disputed in terms of being underscored – she still did not obtain the cut-off score. The incumbent – also recalculated – also scored higher after incorrect scoring had been eliminated.
The evidence was clear, 2 witnesses of the Respondent conceded that during the re-scoring, despite it having been re-done, there were many cases of ‘oversight’ which one witness attributed to the very many applications they had to work through – also on his own scoresheet there were many mistakes. The witness Mr Lenoge had explained that only the school principal – who had testified, and even on the second round of scoring – made unexplained mistakes with the scoring and calculation of totals – even although the school principal had been the only person who had attended the training.
Ms Mohlathe had, during her testimony, explained that the Applicant was not prejudiced by the closed-list-numbering at item 8 and 10 of the generic Application-form, because the absence of a warning not to add more items to any list of skills (item 8) / Extra & Co-Curriculam Activities (item 10) is indicative that more skills and activities may be added to the list – that the numbering to 2 and the numbering to 3 does not ‘close’ the list to that many items. This was not disputed or questioned further by the Applicant – no disagreement was raised as to the Applicant’s awareness of this.
Mr Lenoge testified that the Applicant, if scored correctly, would only have moved from position 17 to position 11. The Applicant never disputed this, nor ‘placed’ herself in any other more favourable position with a different score-calculation of her own.
Holistically, the evidence before me is that all candidates – even the successful candidate, the incumbent – was to some extent underscored during the shortlisting process. In my view candidates whose forms were recalculated were indiscriminately affected by the absence of spaces to provide more answers in item 8 and item 10. Whence, the re-calculations – although not done on all of the forms of candidates who applied, showed underscoring and calculation-mistakes at least on the forms brought before me – most importantly, with both the Applicant and the incumbent underscored the evidence suggests the Applicant had, at the very least, a fair opportunity to compete. I therefore conclude that the Respondent did not commit an unfair labour practice as described in the LRA section186(2)(a).
AWARD
The Applicant, Ms Maditaba Setlhare, was not subjected to an unfair labour practice in terms of section 186(2) of the LRA, by the Respondent, the Gauteng Department of Education.
The claim is dismissed.