---
title: "06 November 2026 – ELRC1262-25/26EC"
description: "Panellist: Khuduga Tlale Case Reference No.: ELRC1262-25/26EC Date of award: 06 November 2026 In the matter between: Makhosandile Gideon Ngxaki Applicant And Department of Education – Eastern Cape 1st Respondent Bantu Msindo 2nd Respondent ARBITRATION AWARD Details of hearing and…"
url: "https://elrc.org.za/docs/06-november-2026-elrc1262-25-26ec/"
updated: "2026-11-06"
category: AWARDS
---

# 06 November 2026 – ELRC1262-25/26EC

Panellist: Khuduga Tlale
Case Reference No.: ELRC1262-25/26EC
Date of award: 06 November 2026

In the matter between:

Makhosandile Gideon Ngxaki Applicant

And

Department of Education – Eastern Cape 1st Respondent

Bantu Msindo 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Makhosandile Gideon Ngxaki (“applicant”) and Department of Education – Eastern Cape (“1st respondent”) and Bantu Msindo (“2nd respondent”) was held on 15 and 16 October 2026 at the 1st respondent’s offices in Maletswai. The applicant appeared in person, and Adv. R Schmido, instructed by Webbers Attorneys, represented him. Mr. MW Hlekani, CES: Labour Relations, represented the 1st respondent. The 2nd respondent appeared in person, and Mr. H Brown, attorney, represented him.
2. These proceedings were conducted in English, and was digitally, and manually recorded. The parties agreed to submit the written heads of argument on Friday, 23 October 2026.

Issues to be decided

1. The issue in dispute is whether an unfair labour practice was committed against the applicant when he was not appointed for the position of Principal (P3) at Ethembeni Senior Secondary School, in Joe Gqabi District. Background to the dispute
2. The 1st respondent advertised the position of Principal (P3) at Ethembeni Senior Secondary School under Volume 4 of 2025/77 in an open post bulletin dated 05 September 2025, with a closing date of 30 September 2025. The applicant and the 2nd respondent applied for the position and were both shortlisted. The shortlisted candidates were required to prepare a PowerPoint presentation. The applicant met the primary requirements and held an Advanced Diploma in School Leadership and Management. The interviews were conducted on 26 November 2025.
3. Following the interviews, the applicant was ranked as the 2nd suitable candidate, with an average score of 30.6 points, while the 2nd respondent was ranked as the 1st suitable candidate, with an average score of 31 points. The 2nd respondent was appointed to the position with effect from 01 January 2026, at an annual salary of R703 107,00. The 2nd respondent was joined as a party to these proceedings.
4. The applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“Council”), alleging that his non-appointment was procedurally and substantively unfair. He sought an order promoting him to the disputed position. The dispute remained unresolved at conciliation and was subsequently referred to arbitration. The parties submitted bundles of documents, which were marked as bundles “A” and “R”, respectively.

Summary of Evidence

THE APPLICANT’S EVIDENCE

First Witness: Makhosandile Gideon Ngxaki

1. The witness testified under oath that he was the applicant in this matter. He stated that the 1st respondent had employed him as a Deputy Principal with effect from 1 October 2019. The requirements for the disputed position included a recognized three- or four-year qualification in Education, while a certificate in Management and Leadership would be an advantage. He referred to document “A17”, which indicated that the school catered for learners in Grades 8 to 12. The witness testified that he lodged a grievance following the interviews, as reflected in documents “A19–A20”, but the grievance was neither attended to nor resolved. He further stated that the 2nd respondent was a Senior Phase educator and not a Further Education and Training (FET) educator. The 2nd respondent taught Grades 7 to 9 rather than Grades 10 to 12.
2. The witness testified that the interviews were delayed by approximately 150 minutes, which he alleged resulted in unequal treatment and caused him psychological distress. The candidates were informed that there was a technical problem, and he was unable to project his presentation using PowerPoint. He maintained that the delay and his inability to project the presentation adversely affected his performance during the interviews. The witness testified that the other candidates had also been unable to project their presentations using PowerPoint. However, it was alleged that the 2nd respondent was the only candidate who had been afforded the opportunity to project his presentation. He further contended that the 2nd respondent should not have been shortlisted. He referred to document “A79–A81”, which contained the shortlisting minutes for the disputed position dated 19 November 2025. The criteria set by the shortlisting panel included a certificate in Management and Leadership, FET subjects, grades 8-12 and position of being a principal.
3. The witness referred to documents “A40–A54” as his application for the position. Document “A50” contained his certificate in School Leadership and Management, while documents “A47–A49” contained his academic record. He further referred to documents “A55–A77” as the 2nd respondent’s application for the position. Document “A64” reflected that the 2nd respondent held a Diploma in Education: Senior Phase, which qualified him to teach Grades 7 to 9. The witness stated that FET was a separate specialization. Documents “A59–A62” contained the 2nd respondent’s curriculum vitae. The witness maintained that the 2nd respondent did not possess an FET qualification and a certificate in Management and Leadership and therefore did not meet the primary requirements of the disputed position.
4. He referred to document “A86”, which contained the summary of the scores, and documents “A93–A104”, which comprised the individual score sheets. He testified that the scores allocated to the 2nd respondent were 39, 16 and 38, while his own scores were 26, 40 and 26. He contended that he had been incorrectly scored by the third panelist, who had allocated him 26 points instead of 30 points. According to the witness, his average score should therefore have been 32 points rather than 30.6 points. He maintained that, had the score been correctly calculated, he would have been ranked as the 1st suitable candidate.
5. Under cross-examination by the 2nd respondent, the witness reiterated that he had not been afforded an opportunity to project his presentation using PowerPoint. He stated that the candidates had been informed of a problem with the laptop and that he had attempted to use his own laptop, but without success. He testified that all three candidates had been prejudiced by their inability to project their presentations, although he maintained that the 2nd respondent had been afforded that opportunity. He further stated that the shortlisting criteria required candidates to possess a certificate in Leadership and Management.
6. Regarding the scoring, the witness testified that the scoring sheets contained blocks corresponding to different numerical ranges and that he had been allocated six points under the relevant column dealing with a score of 10 points. He conceded that document “A65” was not an academic record. He maintained, however, that the 2nd respondent’s Senior Phase teaching diploma did not satisfy the requirements because the position required an FET qualification.
7. Under cross-examination by the 1st respondent, the witness stated that he was not disputing the 2nd respondent’s qualifications. He maintained that candidates were required to have FET subjects and the relevant qualification. He testified that the requirements for the position were contained in the advertisement and that candidates had to possess a recognized qualification as specified in the bulletin. The witness stated that candidates were required to teach Grades 8 to 12. He conceded that he did not know which specific subjects were required and that no particular subjects had been specified. He further conceded that Ethembeni Senior Secondary School catered for learners in Grades 8 to 12.
8. He maintained that the advertisement referred to Grades 8 to 12 and that only candidates with FET qualifications should have been considered. The witness also testified that he regarded it as his constitutional right to speak his preferred language. However, he conceded that he had not informed the interview panel members that he was uncomfortable speaking English during the interviews. The witness conceded that all the candidates had experienced the delay in the commencement of the interviews. He nevertheless maintained that the delay, together with his inability to project his PowerPoint presentation, had negatively affected his performance. He conceded that the three panelists had allocated him 8, 10 and 6 points for his presentation. He further testified that Mr. Stemela, who was one of the interview panelists, knew the 2nd respondent and he was one of the reference for the 2nd respondent. However, he stated that he did not know whether Mr. Stemela had influenced the outcome of the interviews and conceded that he had no evidence that Mr. Stemela had exercised undue influence.
9. The witness stated that he could not disclose the name of the person who had informed him that the 2nd respondent was the only candidate who had been allowed to project his presentation using PowerPoint. He confirmed that the 2nd respondent had served as the Principal of Ntlalo Secondary School from 2022 to 2025. He further stated that the shortlisting criteria required a certificate in Leadership and Management, whereas the 2nd respondent's qualifications reflected management-related training, as indicated in document “A69”.
10. During re-examination, the witness reiterated that the shortlisting criteria specifically required a certificate in Leadership and Management rather than experience. He maintained that the 2nd respondent held a Senior Phase Education Diploma. He also confirmed that document “A65” was not a completed academic record and conceded that Ethembeni Senior Secondary School catered for learners in Grades 8 to 12.
11. In response to questions seeking clarity, the witness stated that his dispute concerned the qualifications, the requirements relating to Leadership and Management, and the scoring process. He maintained that the advertisement had to be read together with the bulletin. He further testified that the advertisement appeared to include both Senior Phase and FET educators. The witness stated that the third criterion used during shortlisting required candidates to have already occupied the position of Principal. He maintained that he had not been a Principal when he applied for the disputed position and that, on the basis of this criterion, he should not have been shortlisted.
12. Regarding the delay in the commencement of the interviews, the witness testified that it had caused him stress. However, he conceded that he had not raised his concerns about the delay with the interview panel members. He likewise acknowledged that he had not raised the language issue with the panel.
13. In response to questions seeking clarity from the applicant's representative, the witness maintained that Grades 8 to 12 fell within the FET phase. He further contended that the shortlisting panel had not fully applied the criteria it had established.
14. In response to questions seeking clarity from the 1st respondent's representative, the witness reiterated that FET covered Grades 8 to 12 and maintained that he should have been shortlisted in accordance with the requirements set out in the bulletin. THE 1ST RESPONDENT’S EVIDENCE First Witness: Ms. Patience Thobeka Mdashe
15. The witness testified under oath that she was employed by the 1st respondent as an Assistant Director: Human Resources (HR). She explained that the HR was responsible for checking application forms and acknowledging receipt of applications after the closing date of the advertisement. The responsibility for determining whether applicants met the requirements of the advertised post rested with the shortlisting panel. The witness identified document “A3” as the advertisement, which required candidates to possess a teaching qualification and seven years’ teaching experience. She identified documents “A55–A57” as the 2nd respondent’s application form. She testified that the 2nd respondent possessed an M+ qualification and met the requirements of the post.
16. The witness further explained that the reference to Grades 8–12 in document “A17” related to the size of the school, Ethembeni Senior Secondary School, which catered for learners from Grades 8 to 12. She stated that the reference to “stated subjects” meant any subjects, as the advertisement did not specify the subjects to be taught. Consequently, the advertisement did not exclude candidates who taught Grades 7–9.
17. The 2nd respondent’s representative indicated that he had no questions for the witness. He was cautioned about his decision and its implications but maintained that he did not wish to question the witness.
18. Under cross-examination, the witness confirmed that the HR checked all documents attached to the application forms against the requirements of the advertisement. She stated that an academic record had to be attached to the application form. She maintained that the senior phase comprised Grades 8–10 and identified document “A64” as the senior phase teachers’ diploma. She further explained that the subjects taught at Further Education and Training (FET) level depended on the particular school. According to her, a senior phase educator could teach Grades 8–12. The witness testified that the 2nd respondent’s academic record reflected third-year results and that the document had been accepted as a full academic record for purposes of the application, as indicated in document “A64”. She explained that older teachers-training colleges had experienced difficulties in issuing full academic records.
19. She reiterated that the reference to Grades 8–12 related to the size of the school and not its grade profile. She confirmed that she was not a member of the shortlisting panel. The witness identified document “A98” as the applicant’s score sheet. She acknowledged that the applicant had been awarded 6 points for question 1, but that the score had been recorded in the column designated for 10 points rather than in the column designated for 6 points. She nevertheless maintained that the 2nd respondent possessed an M+4 qualification and qualified to be shortlisted. She also testified that the applicant and the 2nd respondent had studied teaching in 2001 and 2012, respectively, and that their qualifications would therefore not necessarily be the same.
20. Under re-examination, the witness reiterated that the requirements of the advertised post did not specify an FET qualification. She explained that third-year results would not be issued if there were outstanding academic results from the first and second years. She again emphasized that Grades 8–12 referred to the size of the school. Second Witness: Ms. Tshidi Matius
21. The witness testified under oath that she represented the parent component of the Ethembeni School Governing Body (SGB). She confirmed that there had been a vacancy for the position of Principal at the school and that she had served as a member of the selection panel responsible for filling the post. The witness explained that she scored the candidates during the interviews by recording numerical scores. She identified document “A98” as the applicant’s scoring sheet and confirmed that she was the panel member who had scored the applicant. Her scores were as follows:
    • Question 1: 6/10;
    • Question 2: 3/5;
    • Question 3: 4/5;
    • Question 4: 3/5;
    • Question 5: 2/5;
    • Question 6: 4/5; and
    • Question 7: 4/5.
22. The applicant’s total score was 26 points. The witness maintained that she had made no mistake when allocating the scores. She specifically testified that she intended to award the applicant 6 points for question 1 and that she understood the difference between 6 and 10.
23. The 2nd respondent’s representative indicated that he had no questions for the witness. He was cautioned about his decision and its implications but maintained that he did not wish to question the witness.
24. Under cross-examination, the witness confirmed that question 1 had a column designated for 6 points. She maintained that her intention had been to award the applicant 6 points and that the score was clearly reflected as 6, notwithstanding that it had been recorded in the column designated for 10 points. She conceded that, for questions 2 to 7, she had recorded the scores in the correct columns. Nevertheless, she denied having made a mistake when recording the score for question 1 in document “A98”. The witness further testified that the shortlisting criteria included a management and leadership certificate and FET subjects for Grades 8–12. She acknowledged that she did not have extensive knowledge of the process and explained that the panel had been guided by a resource person, namely the circuit manager, who led the process.

THE 2nd RESPONDENT’S EVIDENCE

1. The 2nd respondent’s representative indicated that the 2nd respondent would not lead any evidence. The representative was cautioned about the decision and its implications but maintained that no evidence would be presented on behalf of the 2nd respondent.

Survey of Arguments

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THE APPLICANT’S ARGUMENT
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1. The applicant’s representative submitted that Senior Phase teacher could not teach Grades 10-12, but FET teacher can teach grades 8-12. Having regard to grade profile of Ethembeni Senior Secondary School, the teacher is required to teach Grades 8-12. According to the 2nd respondent teaching qualification, he would be able to teach Grades 8 and 9, but not Grades 10-12. Meaning the 2nd respondent does not hold the necessary and requisite qualification for the position. The 2nd respondent should not have been shortlisted because he did not attach the academic record as per the advertisement.
2. The 2nd respondent does not satisfy the criteria of the secondary requirements. The evidence goes that the 3rd criteria was ignored by the shortlisting committee as the other candidates were also not in Principal positions. The criteria that are contentious was the qualification of FET and the management and leadership certificate. It was undisputed evidence that the 2nd respondent does not possess either one of the two. Turning to the score sheet of Ms. Matius and whether it may possibly resemble a 6 was immaterial. It was marked and made within the 10-mark column. What this means is that the applicant was scored 10, and not 6.
3. The applicant has laid the evidentiary foundation for his claim of unfair labour practice. The evaluation of the above factors between the applicant and the 2nd respondent stand undisputed. The 1st respondent failed to comply with the applicable procedural requirements relating to promotion. The 2nd respondent should not have been sifted nor shortlisted for the position. The decision taken are irrational, grossly unreasonable and mala fides. The 1st respondent clearly failed to comply with its own criteria. A failure to comply with its own rules must result in substantive unfairness, but for this failures, the applicant would have been appointed. The 2nd respondent was clearly not suitable for promotion. The decision of the 1st respondent should set aside and replaced with the promotion of the applicant in the circumstances.

THE 1ST RESPONDENT’S ARGUMENT

1. The 1st respondent’s representative submitted that the applicant failed to prove the allegation that he was unfairly treated by the 1st respondent. The applicant failed to prove any procedural unfairness or any procedural irregularity in the process which prejudiced him. The 2nd respondent meets the requirements of the post he has been appointed on. The applicant was not the Principal when he applied for the said position, and one of the criterion was for the candidates to be a Principal. The applicant should not have been shortlisted for this position if the criterion was fully applied. The 1st respondent has exercised its right to promote the 2nd respondent in a fair and just manner in line with the managerial prerogative to do so. The applicant’s application must be dismissed. THE 2ND RESPONDENT’S ARGUMENT
2. The 2nd respondent’s representative submitted that the applicant failed to prove that he was unfairly treated when he was not promoted to the disputed position. There was no emphasis in the profile on a particular learning area or subject to be taught in Grades 8-12. The 2nd respondent met the relevant advertised educational requirements. If the shortlisting criterion was applied fully, the applicant himself should not have been shortlisted because he did not occupy the Principal’s position. The applicant’s application be dismissed.

Analysis of evidence and arguments

Introduction

1. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is 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 (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to benefits to an employee.

1. The dispute before me relates to an alleged unfair conduct by the 1st respondent relating to promotion. In promotion disputes, the applicant bears the onus to prove that the 1st respondent’s conduct was unfair. On the other hand, the 1st respondent, is in the same token, obliged to defend challenges on the substantive, and procedural fairness, if it wishes to avoid a negative outcome.
2. The selection and appointment of candidates ordinarily fall within the employer's managerial prerogative. It is not the function of a commissioner to substitute their own assessment for that of the employer or to determine who the best candidate ought to have been. The enquiry is whether the employer exercised its discretion fairly, rationally and in accordance with the applicable requirements and criteria. Where an allegation of bad faith, improper motive or procedural irregularity is raised, it must be assessed against the evidence presented.
3. Section 138(7)(a) of the Act enjoins me to provide brief reasons for my findings.

Pre-arbitration minutes

1. In Sethole and Others v Dr Kenneth Kaunda District Municipality (JS 576/13) \[2017\] ZALCJHB 484, the Labour Court considered the significance of agreements recorded in pre-trial minutes and referred to the principle expressed in NUMSA and Others v Driveline Technologies (Pty) Ltd and Another, namely that parties should generally be held to the issues on which they have agreed in their pre-trial minutes. In the present matter, the parties identified the issues to be determined as whether the 2nd respondent met the relevant requirements, whether he was suitable for appointment, whether the Ethembeni SSS School Governing Body (SGB) established and applied shortlisting criteria, whether the applicant and the 2nd respondent were afforded an opportunity to project their PowerPoint presentations, and whether the applicant was correctly scored. I shall determine the dispute within the scope of the issues identified by the parties, having regard to the evidence led in respect of each issue.

Whether the 2nd respondent has the inherent requirements?

1. The advertisement, marked “A3”, required candidates to possess a recognized three- or four-year qualification in education, including professional teacher education. The evidence established that the 2nd respondent held a Senior Phase Diploma in Education. The applicant expressly indicated that he did not dispute the 2nd respondent's qualification as an inherent requirement of the advertised post. Neither the advertisement nor the evidence concerning the inherent requirements established that FET qualification was a mandatory requirement. I am therefore satisfied, on the evidence presented, that the 2nd respondent met the educational qualification requirement stipulated in the advertisement.

Whether the 2nd respondent possess leadership and management qualification?

1. The next issue concerns the shortlisting criteria adopted by the shortlisting committee on 19 November 2025. As recorded in paragraph 7(3) of the pre-arbitration minutes, these criteria included a certificate in management and leadership, FET subjects for Grades 8 to 12, and having held the position of Principal. The advertisement indicated that a certificate in management and leadership would be an advantage. It is therefore necessary to distinguish between the inherent requirements of the advertised post and the additional criteria adopted by the shortlisting committee. The applicant testified that the 2nd respondent did not possess a certificate in management and leadership. The evidence established that the 2nd respondent held an Honours Bachelor of Education in Education Management, Law and Systems.
2. The question is whether this qualification satisfied the criterion adopted by the committee or was accepted as an equivalent qualification. Although the 2nd respondent held an honours qualification at a higher NQF level than the certificate referred to in the criterion, the difference in NQF levels does not, without further evidence, establish that the qualifications were equivalent for purposes of the selection process. The criterion, as recorded, referred specifically to a certificate in management and leadership. The evidence did not establish that the committee had expressly provided for equivalent qualifications or that it had formally determined that the 2nd respondent's honours qualification satisfied this particular criterion. On the evidence presented, I find that the 2nd respondent did not possess the specified certificate. He therefore did not meet that criterion as formulated. Application of the shortlisting criteria
3. The parties agreed that the shortlisting criteria were in dispute. The pre-arbitration minutes’ record three criteria adopted by the shortlisting committee: a certificate in management and leadership, FET subjects for Grades 8 to 12, and having held the position of Principal. The criteria must be assessed in the form in which they were adopted and communicated, together with any evidence explaining their purpose, interpretation or subsequent amendment. A selection panel is ordinarily expected to apply the criteria it has adopted consistently to the candidates under consideration. The evidence established that the applicant was a Deputy Principal when he applied for the position, whereas the 2nd respondent was a Principal. The applicant's own evidence was that he should not have been shortlisted if the criterion relating to having held the position of Principal was applied strictly. Nevertheless, the committee shortlisted both candidates.
4. The evidence must therefore be considered to determine whether the position of Principal was intended as a mandatory requirement for shortlisting or as a preference relevant to the assessment of suitability. The mere fact that the applicant was shortlisted does not, on its own, establish that the criteria were applied fairly. Equally, the committee's decision to shortlist both candidates does not establish that the applicant was prejudiced by the manner in which the criterion was applied. The evidence indicates that the committee did not exclude candidates who did not meet every criterion recorded in the pre-arbitration minutes. This raises a legitimate concern regarding the consistent application of the adopted criteria. However, the significance of that departure must be assessed in the context of the purpose of the criteria, the requirements of the advertised post and the treatment of the candidates.
5. The fact that the applicant was also shortlisted, despite not holding the position of Principal at the time of application, is relevant to the question of prejudice. It does not, however, conclusively resolve whether the process was fair. The decisive question is whether the departure from the criteria rendered the selection process unfair, taking into account all the evidence before me. There was no evidence led about the departure from the set criteria, no evidence to suggest that this departure prejudice other candidates who were not shortlisted. The issue of fairness will depend on the prejudice suffered by other candidates, but in this instance, no candidates suffered prejudiced, therefore, the selection process was fair.

Whether the applicant was properly scored?

1. The applicant alleged that Ms. Matuis incorrectly recorded his score on the interview assessment sheet. Ms. Matuis testified that she intended to award the applicant six points and that the score of six was correctly recorded, although it appeared in the column designated for ten points. She further testified that the scores for questions 2 to 7 were recorded in the appropriate columns. The issue is whether the placement of the mark constituted a recording error or whether it reflected an incorrect assessment of the applicant's performance. In determining this issue, I have considered the scoring sheet, Ms. Matuis's explanation and the evidence relating to the calculation and effect of the final score.
2. The scoring sheet and Ms. Matuis's explanation are consistent with the finding that the intended score was six. The evidence indicates that the mark was entered in the wrong column but that the intended allocation was otherwise correctly reflected and calculated. The applicant was required to establish that the scoring error resulted in an unfair assessment or that the score was allocated arbitrarily, in bad faith or for an improper purpose. On the evidence presented, the applicant did not establish that the placement of the mark altered his intended score. I accordingly find that the applicant has not established that this allegation renders the selection process unfair. PowerPoint presentation
3. The applicant alleged that the interviews were delayed by approximately 150 minutes and that he was unable to project his PowerPoint presentation because of technical difficulties. He further alleged that the 2nd respondent was afforded an opportunity to project his presentation when he was not. The relevant enquiry is whether the candidates were treated consistently and whether any difference in the arrangements materially affected the fairness of the interview process. The evidence that the candidates experienced the same delay and technical difficulties weighs against a finding that the delay itself constituted unequal treatment. However, the allegation that the 2nd respondent was permitted to project his presentation must be considered separately.
4. The applicant testified that he had been informed by another person that the 2nd respondent projected his presentation using PowerPoint. The applicant did not call that person to testify, and the allegation was not independently substantiated by direct evidence. To the extent that the allegation depended on an out-of-proceedings statement tendered to prove that the 2nd respondent had been afforded an advantage, it constituted hearsay evidence, the weight and admissibility of which must be assessed in accordance with the applicable law. The applicant did not establish, on the evidence before me, that the 2nd respondent received a material advantage that was denied to him. The applicant received presentation scores of 8 out of 10, 10 out of 10 and 6 out of 10 from the three panel members. Those scores are relevant to the assessment of his presentation. In the absence of sufficient evidence establishing unequal treatment or a material irregularity, I am not persuaded that the applicant has discharged the onus in respect of this allegation. Whether the 2nd respondent suitable for the position?
5. The evidence established that the 2nd respondent held a Senior Phase Diploma in Education and an Honours Bachelor of Education in Education Management, Law and Systems. He was also a Principal at the time of his application. The advertisement required a recognized three- or four-year qualification in education that included professional teacher education, and the applicant did not dispute the 2nd respondent's educational qualification as an inherent requirement of the post. The 2nd respondent's qualifications and experience as a Principal were relevant to the assessment of his suitability for a school leadership position. Nevertheless, suitability for appointment must be distinguished from compliance with the shortlisting criteria adopted by the committee. A candidate may meet the inherent requirements of an advertised post without necessarily satisfying every additional criterion used during shortlisting.
6. The evidence did not establish that the 2nd respondent lacked the inherent educational requirements of the post. It did, however, raise a question regarding his compliance with the specified certificate criterion and the committee's application of its adopted criteria. The applicant contended that the 2nd respondent should not have been shortlisted because he did not possess the specified certificate, and that the criterion should have been applied consistently to all candidates. This contention raises a legitimate issue of procedural fairness. However, the fact that the applicant was also shortlisted despite not holding the position of Principal at the time of application is relevant to assessing the consistency and effect of the committee's approach.
7. Ultimately, the question is whether the committee's treatment of the criteria rendered the selection process unfair. Having considered the evidence concerning the 2nd respondent's qualifications, the applicant's qualifications and position at the time of application, and the manner in which the criteria were applied, I find that the 2nd respondent met the inherent educational requirements of the advertised post. This finding does not, in itself, establish that every aspect of the shortlisting process was fair. The alleged departure from the additional criteria must be assessed in the context of the evidence as a whole. There was no evidence led regarding the alleged departure, and whether that departure rendered the selection process unfair. Both the applicant and the 2nd respondent benefitted from the departed set criteria.

Conclusion

1. Having considered the evidence as a whole, I must determine whether the applicant has established that the 1st respondent committed an unfair labour practice relating to promotion, as contemplated in section 186(2)(a) of the Act. The enquiry is not whether the applicant was entitled to promotion or whether another candidate might have been preferable. It is whether the 1st respondent conducted the selection process fairly, consistently and in accordance with the applicable requirements and criteria. In reaching my determination, I have considered the 2nd respondent's educational qualifications and experience, the shortlisting criteria recorded in the pre-arbitration minutes, the evidence concerning their application, the applicant's scoring complaint and the allegations relating to the PowerPoint presentations.
2. I have also considered the concern arising from the committee's failure to apply the recorded criteria strictly and consistently. The existence of a departure from an adopted criterion does not automatically establish an unfair labour practice; its significance must be determined in light of the nature of the criterion, the circumstances of the departure and its effect on the fairness of the selection process. On the evidence presented, the applicant has not established that the scoring complaint or the arrangements relating to the presentations rendered the process unfair. The 2nd respondent met the inherent educational requirements of the advertised post. In relation to the shortlisting criteria, the applicant has not established, on the evidence as assessed above, that the committee's approach resulted in unfair treatment of the applicant sufficient to sustain the referral. I accordingly find that the applicant has not discharged the onus of proving an unfair labour practice relating to promotion under section 186(2)(a) of the Act. Award
3. The applicant, Makhosandile Gideon Ngxaki, has failed to prove that the respondent committed an unfair labour practice in terms of Section 186(2)(a) of the Act, relating to promotion, by the 1st respondent, the Department of Education – Eastern Cape.
4. The 2nd respondent, Bantu Msindo, did meet the inherent requirements of the advertised position.
5. The applicant’s application is dismissed.

Signature:
Commissioner: Khuduga Tlale
Sector: Education