07 August 2026 – ELRC417-24/25KZN

IN THE ELRC ARBITRATION

BETWEEN:

Thabiso Mokoena (the Applicant)

And

DEPARTMENT OF EDUCATION – KWAZULU-NATAL (First Respondent)

And

Ms P.M. Sithole (Second Respondent)

ARBITRATION AWARD
Case Number: ELRC417-24/25KZN
Last date of arbitration: 17 July 2026
Date of submission of closing arguments: 28 July 2026
Date of award: 07 August 2026

ELAINE MOODLIAR
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
Centurion
0046
Gauteng
RSA

Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

This matter was set down for arbitration and commenced on 30 September 2024. It was heard on various dates and was concluded on 17 July 2026. The parties were thereafter granted until 28 July 2026 to submit written closing arguments. Both parties submitted written closing arguments.
The Applicant, Mr Thabiso Mokoena (“the Applicant”), was initially represented by Mr Khomo (SADTU official). After he concluded his testimony, Mr Luyanda Monakali (SADTU official) took over as the representative.
The First Respondent, the Department of Education, KwaZulu-Natal, was represented by Mr S.T Danisu, an official of the Department of Education. The Second Respondent, Ms P.M Sithole, was represented by Ms S Memela (SADTU official).

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) (a) of the Labour Relations Act 66 of 1995 (LRA) concerning the Department’s failure to promote the Applicant.
The issue to be decided is whether the non-appointment of the Applicant to the post of Deputy Principal constitutes an unfair labour practice in terms of Section 186(2)(a) of the LRA, 66 of 1995 and, if so, to determine the appropriate relief.
The Applicant sought that he be appointed to the Deputy Principal post for which he was lawfully recommended, alternatively to a comparable Deputy Principal position within the KwaZulu-Natal Department of Education.

BACKGROUND TO DISPUTE AND NARROWING OF ISSUES

The Applicant applied for the post of Deputy Principal at the Siyahlomula Secondary School, post number 1024, which was advertised under HRM Circular 20 of 2023. At the time of the application, the Applicant was a post-level 1 educator at the Siyahlomula Secondary School.
It was common cause that the Applicant was shortlisted and interviewed. The Applicant had the requisite knowledge, experience and qualifications and had scored the highest among the candidates that had been interviewed.
There were three candidates recommended by the School Governing Body (SGB) to the Employer, the Head of Department (HOD). The three candidates were:

NAME GENDER RACE SCORE CURRENT RANK SUBJECTS
Mokoena T M A 33.9 PL 1 English
Sithole PN F A 30.1 PL2 Physical Sciences
Ngcobo TN F A 29.6 PL 1 English

The Second Respondent, Ms P.M Sithole, who scored 30.1, was appointed by the HOD. It was further common cause that the Second Respondent also had the requisite knowledge, experience and qualifications for the post.
The Applicant’s case was that he ought to have been appointed since he scored the highest.

SUMMARY OF EVIDENCE AND ARGUMENT

The Applicant, Mr T Mokoena, and one other witness, Mr Goodman Nhlanhla Jonkoro, testified on behalf of the Applicant.
The Second Respondent, Ms P.M Sithole and Mr Mxolisi Amadeous Mncwabe testified on behalf of the First Respondent.
The evidence presented forms part of the record, and as such, I will not burden this award with verbatim submissions. The relevant submissions relating to the key issues in dispute will be captured in the survey below. All evidence and arguments were considered when reaching my decision.
The Applicant’s evidence and arguments
The Applicant, Mr Thabiso Mokoena, testified that he was a post level 1 educator at the time of applying for the post. He met the minimum requirements for the post. He was not aware of a gender requirement. He was aware of the requirement of five years’ experience, and he had eight years’ experience. He was interviewed on 14 October 2023.
Under cross-examination, the Applicant was referred to the HRM Circular No. 20 of 2023 item 2.1.1, which states that appointments will be made after considering the ability of the candidates as well as the need to address the imbalances of the past, and in making appointments, the Department must consider Section 195 and 197 of the Constitution of the Republic of South Africa.
The Applicant agreed that the imbalances of the past refer to race, gender, and cultural diversity. He, however, stated that he was not aware that the post was reserved for a female. This was not specified. Had he known, he would not have applied.
He confirmed that in the past higher positions were mostly occupied by males. It was put to him that the state had an obligation to address this imbalance. He maintained that he disagreed that the post ought to be filled by a female.
The Applicant agreed that the HOD appointed the Second Respondent based on the provisions of the Personnel Administrative Measures (PAM) document item B5.5.1 – B5.5.3 (which was shown to him during cross-examination).
The Applicant further did not comment when pointed to the Employment of Educators Act in Chapter 3, Section 6 (b) permits the HOD to decline or change recommendations made by the SGB which did not adhere to democratic values or principles referred to in Section 7 (1), that is principles of equity, equality and other democratic values.
The evidence of Mr Goodman Nhlanhla Jonkoro
Mr Jonkoro stated that he was the Chairperson of the SGB during the recruitment process. He participated in the recruitment process and was aware that the Applicant was ranked number one and the Second Respondent number two. He was surprised when the Second Respondent got the post.
On cross-examination, he confirmed that the Second Respondent, as well as the Applicant, were recommended by the SGB. He is not aware of the Department’s policy, as he is not in the education profession. The SGB did not raise any complaints or grievances against the appointment of the Second Respondent. He worked well with the Second Respondent as she was a Departmental Head when the post was advertised.
He has since exited, and a new SGB was elected since the Second Respondent’s appointment as Deputy Principal.

The First Respondent’s evidence and arguments
The evidence of Ms P.M Sithole (Second Respondent)

The Second Respondent testified that she applied for and was shortlisted for the Deputy Principal position at a school. She only learned of her appointment upon receiving her letter and was introduced to the new School Governing Body (SGB) after the previous one had completed their term. The new SGB accepted her without any dissatisfaction, and she was welcomed by the School Management Team and the teaching staff. Currently, she is fulfilling her role and observes that the school community is happy with her appointment, which she believes was based on merit and relevant legislative frameworks.
The evidence of Mr Mxolisi Amadeus Mncwabe (Chief Education Specialist)
Mr MA Mncwabe, the Chief Education Specialist for uMsunduzi CMC, testified that he has more than 20 years’ experience in the Department. He has grown within the ranks of the Department until he became a Chief Education Specialist. At the time when the post was advertised, there was no Circuit Manager in charge of the school; therefore, he was overseeing the school as a Circuit Manager.
He is aware of the post that is in dispute as it falls under his Circuit Management Centre. The Resource Person reported challenges to him at a certain point, and upon his intervention, those challenges were resolved. He confirmed that the HOD appointed the Second Respondent from the recommendations submitted to his office. It was not the first time that the HOD had not appointed a candidate ranked as number one. This was not unusual.
The HOD, when considering an appointment, would look at the recommendations submitted by the SGB and consider Section 195 and 197 of the Constitution, as outlined in HRM Circular 20 of 2023, to ensure adherence to legal and policy requirements. This demonstrates compliance with applicable laws governing appointments.
The HOD approves an appointment that is in line with the prescripts that govern the appointment processes. The SGB was made aware of the appointment, and no dissatisfaction arose from them. The SGB was appointed in terms of the South African Schools Act and did not challenge the appointment made by the HOD. The SGB recommended more than one candidate. It is within the policy of the Department that any person listed from number one to three on the EHR11 may be appointable by the HOD.
The Department has an obligation to apply the Employment Equity Act when it comes to gender, and in this case, gender was one of the factors considered for this appointment.

ANALYSIS OF EVIDENCE AND ARGUMENT

Section 186(2) (a) of the Labour Relations Act 66 of 1995, as amended, defines an unfair labour practice as 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 the provision of benefits to an employee.
It is trite that the Applicant bears the onus of proving that the employer committed an unfair labour practice against him. To discharge this onus, the Applicant must show that the Employer exercised its discretion improperly, unfairly, and arbitrarily. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair; there must have been no discrimination, and the decision must not have been grossly unreasonable. Any decision taken by an Employer must be exercised reasonably and judiciously, and an Arbitrator I must be loath to interfere unless there is gross unreasonableness or mala fides.
In this matter, there was no dispute about the fairness of the procedure. It was undisputed that the Applicant was given a fair opportunity to compete for the post. He was shortlisted, interviewed, and he ranked number one in the interview process. The Applicant’s allegation of an unfair labour practice was based on his claim that the First Respondent failed to appoint him to the post in question although he had the highest score and was the first recommended candidate.
The fact that the Applicant obtained the highest score and was recommended for promotion to the post by the SGB does not automatically establish any right or expectation to be promoted to the post.
In stating so, I take guidance from The ELRC Guidelines on Promotion Disputes in the Collective Agreement No.3 of 2016 in Section F (42 – 44) which provide inter alia that:

“The mere fact that the candidate who was eventually promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that the decision not to promote was unfair.” And that: “The Head of Department as employer must place significant weight on the recommendation of the school governing body who has interviewed the candidates. The employer is, however, not bound by the recommendation of the school governing body and may deviate from their recommendation where there are sound reasons for doing so.”

The First Respondent led credible evidence on why the Applicant was not appointed to the post in question. I accept the undisputed version of Mr Mncwabe, who satisfactorily explained how appointments were made by the HOD. His version was also substantiated by the provisions of the PAM document and the Employment of Educators Act, which were also undisputed by the Applicant.
Section B.5 of the PAM Document regulates the advertising and filling of educator posts (ELRC Resolution 5 of 1998).
Section B.5.1.1 states that, “in the making of any appointment or the filling of any post on any educator establishment, due regard must be given to equality, equity and the other democratic values and principles which are contemplated in section 195(1) of the Constitution and which include the following factors, including the need to redress the imbalances of the past in order to achieve broad representation. (Section 7, EEA, 1998).”
Section 7(1) of the EEA of 1998 states that: “ In the making of any appointment or the filling of any post on any educator establishment under this Act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), and which include the following factors, namely—
(a) the ability of the candidate; and
(b) the need to redress the imbalances of the past in order to achieve broad representation.”
Section B.5.4.7 states that: “In considering the applications, the Interview Committee must ensure that the principles of equity, redress and representivity are complied with and they must adhere to: (Section 6(b) (i – v), EEA) B.5.4.7.1 The democratic values and principles referred to in paragraph B.5.1.1.”
Section B.5.5.3 states that: “Despite the order of preference (paragraph B.5.4.13) and subject to paragraph B.5.5.1, the HOD may appoint any suitable candidate on the list.”
Having regard to the above-stated provisions, I am satisfied that the reasons advanced by the First Respondent for the discretion it exercised in respect of appointing the Second Respondent, in attaching more weight to an underrepresented gender, were fairly exercised. The said discretion was not unreasonable and does not constitute an unfair application of the promotion policies.
In fact, it would have been irrational and unfair to make an appointment purely based on performance during interviews, or on experience and qualifications, without considering equity in the workplace.
The recommendation from the SGB was sent to the HOD, who considered the recommendations to give effect to its employment equity guidelines. In so doing, the HOD identified Second Respondent as the preferred candidate considering the question of gender representativity.
In Department of Rural Development & Agrarian Reform, Eastern Cape v GPSSBC and others (2020) 41 ILJ 1321 (LAC, the LAC held that Courts and Commissioners should be reluctant to interfere with an employer’s decision to refuse promotion. Only when the decision or reasoning is assailable because there is evidence that the employer acted on the basis of some unreasonable, irrelevant or invidious consideration; or the decision was arbitrary, capricious or unfair; or the employer failed to apply his / her mind to the promotion or acted in bad faith, should there be interference.
In Department of Justice v CCMA and others (2004) 25 ILJ 248 (LAC), the Court held that an employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter.
The onus was on the Applicant, Mr T Mokoena, to prove, on a balance of probabilities, that the First Respondent, the Department of Education, KwaZulu Natal, had committed an unfair labour practice in not appointing him, and he has failed to successfully discharge this onus.
The First Respondent’s evidence, on the other hand, proved that the appointment by the HOD was based on compliance with the provisions of the PAM and the Employment of Educators Act. The discretion exercised by the HOD was not grossly unfair.
In the circumstances, I find that the First Respondent did not commit an unfair labour practice in respect of the Applicant.