Panellist: Khuduga Tlale
Case Reference No.: ELRC1061-24/25FS
Date of award: 04 August 2025

In the matter between:

Ntsabeng Albertina Sejane Applicant

And

Department of Education – Free State 1st Respondent

Thabiso France Makoko 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Ntsabeng Albertina Sejane (“the applicant”) and Department of Education – Free State (“the 1st respondent”) and Thabiso France Makoko (“the 2nd respondent”) was held on 21 July 2025 at the 1st respondent offices in Bloemfontein. The applicant appeared in person, and Mr. GD du Toit, attorney, represented her. Mr. Solomon Moloi, Labour Relations Officer, represented both the 1st and 2nd respondents.
2. This proceeding was conducted in English, and was digitally, and manually recorded. The parties agreed to submit the written heads of argument on Monday, 28 July 2025. They both submitted.

Issues to be decided

3. The issue in dispute is whether an unfair labour practice was committed against the applicant when she was not shortlisted to the position of a deputy-principal at Ladybrand Primary School at Motheo District. Background to the dispute
4. The 1st respondent advertised the position of a deputy-principal of Ladybrand Primary School in vacancy list 1 of 2023 with post reference number PL3 (821046/304) on 03 May 2023, with the closing date of the 6th of June 2023. The applicant occupied the position of a head of department, PL2, when she applied for the said position, and she was acting on the said position with effect from 12 April 2023, until December 2024. The applicant was not shortlisted for this position.
5. The 2nd respondent was joined as a party to the proceedings. The applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“Council”) alleging that her non-shortlisting was procedurally, and substantively unfair. She sought the whole selection processes to be re-done. The dispute was not resolved at conciliation, and it was referred for an arbitration.
6. The parties submitted bundles of documents, which were marked bundle “A1”, “A2”, “A3”. The parties concluded pre-arbitration minutes as per “A4”.

Survey of Evidence

Applicant’s submissions

First Witness: Ms. Ntsabeng Albertina Sejane

7. The witness testified under oath that she was the applicant in this matter, and she acted from 12 April 2023 to January 2025 in this disputed position. She had acted for twelve (12) months at the time the shortlisting process was conducted. She met the post requirements, and she had managerial experience. There was a discussion about her because she only arrived at the said school in the year 2022. There was another meeting held in January 2024 about her name, and in that meeting Mr. Tshabalala said that she does not qualify for the disputed position. She was not present when those words were uttered.
8. The shortlisting process was held on 22 April 2024. She lodged a grievance about her non-shortlisting, and the outcome indicated that she did not meet the post requirements. She gained managerial experience as SADTU shop-steward in the year 2018. The managerial experience was to manage people. She is a teacher by profession, and she managed the classroom. In August 2021, she acted as the head of department at Mamello Primary School, and she was promoted to the position of a head of department, PL2 with effect from September 2022 at Ladybrand Primary School.
9. Document “A2” was the application forms of all the shortlisted candidates, including herself. The curriculum vitae of the 2nd Respondent did not outline his working experience. Even the curriculum vitae of other candidates, Lebakeng, Hlakoane, and Tlali does not outline their working experience. She had no knowledge how they were shortlisted without outlining their working experience. The other candidate, Nzimande qualified to be shortlisted.
10. Under cross-examination, she confirmed that she acted in the disputed position from 12 April 2023. The closing date for the disputed position was on 06 June 2023 as per “A3”. She had only one (1) month acting when the applications were closed. She stated that the experience was calculated until the closing date of the applications. She later said that she was not sure how the selection process was conducted, but at the time the shortlisting was conducted, she had acted for twelve (12) months. She was promoted to the position of a head of department at Ladybrand Primary School in September 2022, and she had nine (9) months experience when the applications were closed.
11. Under clarity questions, she stated that for a candidate to be appointed to this position, she/he must have at least five (5) years teaching experience. She started in the managerial position in August 2021, when she acted as a head of department, and she was promoted to the position of a head of department in September 2022. She had a managerial experience of three (3) years. She later said that she had two (2) years managerial experience. The shortlisted candidates did not outline their working experience in their curriculum vitae. She had no authority to support her claim that the working experience must be calculated until the shortlisting process, because she had no knowledge of the selection processes. Second Witness: Mr. Tseliso Aaron Mapena
12. The witness testified under oath that there was a recruitment and selection processes workshop around 17 to 19 January 2024. Mr. Tshabalala, who was the facilitator, told them that they need to understand the post requirements, and criteria. Mr. Tshabalala further said that the applicant did not meet the requirements in relation to experience. According to him, Mr. Tshabalala was given them instruction that the applicant does not qualify for this position. They relied on him as a facilitator. He had no knowledge whether the applicant should be shortlisted, and he later said that according to the set criterion, she should be shortlisted.
13. Under cross-examination, he stated that the workshop was facilitated by Mr. Tshabalala. Mr. Tshabalala explained to them the importance of experience, and he further said that the experience of the applicant was below the required minimum experience. Mr. Tshabalala said the working experience was calculated until the closing date of the applications. The applications were closed on 06 June 2023, and the applicant only had two months acting period. The school management starts at PL2, and the criteria needs three (3) years managerial experience. The applicant was having nine (9) months managerial experience.
14. Under clarity questions, he stated that Mr. Tshabalala’s instruction was to inform them that the applicant does not qualify to be shortlisted. He was not part of the shortlisting process. Respondent’s submissions First Witness: Mr. Michael Tshabalala
15. The witness testified under oath that the 1st respondent employed him as the Deputy-Director: HRM at Motheo District. He had knowledge that the applicant was not shortlisted. He denied the allegation that he singled out the applicant during the workshop. The resource person may ask if there was anyone acting in the post before the shortlisting process commenced. No discretion would be given to any candidates after the closing date of the applications. It would be prejudicial to other candidates if the shortlisting panel calculate the working experience beyond the closing date. If a candidate was acting in an advertised post for twelve (12) months, that candidate must be shortlisted. The applicant did not meet the set criteria of three (3) years managerial experience, and she acted less than twelve (12) months in the said position.
16. Under cross-examination, he stated that it was a norm to have a closing date for the applications, and each candidate includes his/her experience until the closing date. The managerial experience and acting period must be until the closing date. He confirmed that he was the author of document “A1.1-5”. He denied the allegation that he singled out the name of the applicant during the workshop. He explained how the working experience and acting period must be calculated without mentioning any candidates name. He confirmed that he told the workshop attendees that if a candidate does not meet the required experience, she/he must not be shortlisted. He stated that the applicant acted for less than twelve (12) months.
17. Under clarity questions, he stated that if a candidate acted for more than twelve (12) months in the same post, she/he must be shortlisted. The three (3) years managerial experience was part of the criteria. The applicant had eight (8) months managerial experience. He does not remember Mr. Mapena asking questions about the applicant’s position during the workshop.
18. He stated that he would have a problem if someone said he mentioned the name of a candidate during the workshop. The position was at Ladybrand Primary School, and the applicant was acting in that position, but he denied ever mentioning the applicant’s name during the workshop.

Survey of Argument

Applicant’s argument

19. The applicant’s representative submitted that the shortlisting panel members were unfairly/wrongly advised, and influenced by Mr. Tshabalala. As a result of the delay in the whole process, it was a fact that by the time of deciding on, and interviewing the shortlisted candidates, the applicant had in fact complied with the legal requirements. There was no law that states that the selection panel may only apply itself to the candidates’ applications as it would have been at the time of advertisement. The trite law must remain flexible, and fair as far as possible.
20. Mr. Tshabalala testified that he informed the workshop attendees that they should comply with the requirements from the date of the advertisement, and even the current acting should not be considered. The shortlisting panel did consider the application of the applicant. It was clear that the shortlisting panel was misled by Mr. Tshabalala. The evidence led did not establish whether or not the comments of Mr. Tshabalala persuaded the shortlisting panel to consider the applicant’s application. Mr. Tshabalala is in a position of authority, and he did play a direct role by prejudicing the applicant. The conduct of Mr. Tshabalala constituted an unfair labour practice.
21. It was not clear from the curriculum vitae of the shortlisted candidates, how they were shortlisted because they did not comply with the shortlisting criteria. This evidence was not disputed during the proceedings. The applicant’s representative argued that unqualified candidates were shortlisted, whereas the applicant was not shortlisted because of the Mr. Tshabalala’s instruction. The applicant complied with the collective agreement, and she should have been shortlisted. The applicant sought that the whole selection process to be re-done.

Respondent’s argument

22. The respondents’ representative submitted that the cut-off date of the advertisement was in June 2023, and at that time the applicant had two (2) months acting in the disputed position. The applicant had only eight (8) months managerial experience. The applicant did not meet the inherent post requirements of three (3) years managerial experience, or one (1) year acting as the deputy-principal.
23. The candidates needed to understand that only experience gained up to the closing date would be considered. The rationale behind the cut-off date was rooted in the principle of fairness. The assessment of the applicant’s application hinges on the principle of fairness, and adherence of fairness to established guidelines, and this application must be dismissed. Analysis of evidence and arguments Introduction
24. Section 186(2)(a) of the Labour Relations Act, 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.

25. The dispute before me relates to an alleged unfair conduct by the 1st respondent relating to promotion. In a case of promotion, the onus is on the applicant to prove that she was a suitable, and better candidate for the position in question. In short, the applicant has to demonstrate that the failure to shortlist her 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. Had the applicant been successful, her appointment would have constituted a promotion.
26. The 2nd respondent was joined as a party to the proceedings. Promotion is an area of managerial prerogative unless the applicant can prove bad faith or improper motives were present. It is not the commissioner’s function or responsibility to choose the best candidate for promotion for the 1st respondent, but simply to ensure that in selecting candidates for promotion, the 1st respondent does not act unfairly. All that the 1st respondent was required to do in this proceeding was to show that it had a rational basis for its decision.
27. It is clear from the testimony of the applicant that her complaint is three-fold. Firstly, she takes issue with the successful, and other candidates being shortlisted as she alleges that they did not possess three (3) years’ management experience. Secondly, she takes issue with Mr. Tshabalala for influencing the selection panel for not shortlisting her. Thirdly, she alleged that she acted in the disputed position for twelve (12) months, and she should have been shortlisted. It is therefore important to analyse these issues separately.

Whether the shortlisted candidates have the required experience?

28. One of the shortlisting criteria required the candidates to have a minimum of three (3) years management experience. It was the applicant’s undisputed evidence that the 2nd respondent, and other shortlisted candidates were not supposed to be shortlisted because their curriculum vitae do not outline their working/management experience. The 2nd respondent’s application for appointment, and his curriculum vitae does not state his working and managerial experience as per “A2.2-6”. Mr. TV Lebakeng stated in his curriculum vitae that he acted as a deputy-principal from July to September 2015, and he did not state when he was promoted to the position of a head of department (PL2) as per “A2.36-39”.
29. Based on the information from his curriculum vitae, he only acted for three (3) months as a deputy-principal. The question that needs to be asked is how they were shortlisted without stating the required managerial experience? The was no evidence led during the proceeding about this issue. The other shortlisted candidates met the inherent requirements of the disputed position.
30. In LAC in Monyakeni v SSSBC & others JA64/13 (delivered on 19 May 2015), the court had the following to say: “(47) the substantive issue as regards the appellant’s dispute with his employer relates to the issue of his core experience in the field of disability management. The determination of whether the appellant’s experience including the recognized experience was such as to make him suitable for promotion is primarily a matter for the employer and the arbitrator was required to defer to this decision when it is taken following a fair and proper process. It is the applicant’s undisputed evidence that the curriculum vitae of the 2nd respondent, and other shortlisted candidates do not outline their working/management experience. Based on evidence presented during the proceeding in relation to this issue, it is reasonable to conclude that the 2nd respondent, and Mr. TV Lebakeng, since they did not possess three (3) years’ management experience, they ought not to have been shortlisted.

Whether the applicant was prejudiced by the shortlisting?

31. It is the applicant’s version that Mr. Tshabalala informed the workshop attendees that the applicant does not qualify to be shortlisted for this position. Mr. Mapena testified that Mr. Tshabalala instructed them during the said workshop that the applicant must not be shortlisted. It is important to note that Mr. Mapena, and Mr. Tshabalala were not part of the selection processes for this disputed position. He failed to prove during these proceedings that the reason the applicant was not shortlisted was because of the influence of Mr. Tshabalala. Mr. Mapena was deliberately avoiding to answer questions during the clarity questions. Mr. Mapena’s testimony was not credible, and he was not a reliable witness.
32. The applicant’s unfairness case has a significant difficulty from the outset in trying to convince me that indeed the 1st respondent played a critical role to deny her an opportunity for promotion in the advertised position. I considered her evidence during the proceedings so as to establish whether there was any undue interference by the 1st respondent or Mr. Tshabalala during the selection processes. I could not find any undue interference by the 1st respondent, or Mr. Tshabalala during the selection processes. Based on the evidence presented during the proceeding, it is clear that the applicant did not suffer any prejudice during the shortlisting process.

Whether she acted for twelve (12) months?

33. The Minister of Basic Education published the revised Personnel Administrative Measures (“PAM”) in Government Gazette no. 39684 on 12 February 2016. The closing date for the said position was on 06 June 2023, therefore, the revised PAM was already in place when the application for the said position was closed. Chapter B.5.4.9 of PAM, states that an educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.
34. The Applicant acted in the disputed position from 12 April 2023, and the closing date for the advertisement of this position was on 06 June 2023. The shortlisting process was conducted on 22 April 2024. The question that needs to be asked is whether the working experience should be calculated until the closing date, or the date of shortlisting? The working experience should be calculated up to the closing date of the job application, as that is the official cut-off point for applications. When shortlisting happens, the experience needed for the role is assessed based on the information provided in the application, self-evidently can only include information up to the closing date. The applicant had one (1) month, and twenty-four (24) days acting at the closing date of this position. Based on evidence presented during the proceedings in relation to this issue, it is reasonable to conclude that the applicant, since she did not act for twelve (12) or more months in this disputed position, did not qualify to be shortlisted. Whether she has the required experience?
35. It was the applicant’s testimony that she acted as head of department in August 2021, and she was promoted to the said position at Ladybrand Primary School in September 2022. It is the applicant’s version she was a shop-steward, and her managerial experience started with that position. The applicant further testified that she managed the classroom, therefore, she had the required three (3) years managerial experience.
36. The managerial experience at the school level starts from the position of a head of department (PL2). To manage the classroom, and being a shop-steward, are not managerial positions. The applicant had one (1) year, ten (10) months, and twenty-four (24) days managerial experience when the advertisement was closed on 06 June 2023. It is clear that the applicant did not meet the inherent post requirements in terms of managerial experience as set by the shortlisting panel. Based on evidence presented during the proceeding in relation to this issue, it is reasonable to conclude that the 1st respondent was right not to shortlist the applicant, since she did not possess three (3) years’ managerial experience. Conclusion
37. Taking all the evidence into consideration, I find that the applicant has failed to substantiate her claims that she was subjected to unfair conduct by the 1st respondent. In the circumstances, the applicant has failed to prove that the 1st respondent has committed an unfair labour practice in relation to the promotion. The 2nd respondent did not meet the inherent post requirements of the disputed position, and he should not have been shortlisted, let alone appointed. Award
38. The Applicant, Ntsabeng Albertina Sejane, has failed to prove that she was the victim of 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 – Free State.
39. The applicant’s application is dismissed.

Signature:
Commissioner: Khuduga Tlale
Sector: Education