09 February 2026 – ELRC451-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY
CASE NO.: ELRC 451-25/26GP
In the matter between:- PIET MAKHALEMELE APPLICANT
and

DEPARTMENT OF EDUCATION- GAUTENG 1ST RESPONDENT
M. HABANE 2ND RESPONDENT

Arbitrator: Mmamahlola Gloria Rabyanyana
Heard: 26 September and 09 October 2025
Closing arguments: 17 December 2025
Date of award: 06 February 2026
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice relating to promotion.

                                                       ARBITRATION AWARD


  DETAILS OF HEARING AND REPRESENTATION

A virtual arbitration was held on 26 September 2025 and 09 October 2025. Advocate R. Mthembu represented the applicant. Mr M.Mmola, a Deputy Chief Education Specialist, represented the respondent. The second respondent, Mr M. Habane, attended the proceedings. The arbitration was adjourned to 10 December 2025 for the testimony of the respondent’s second witness. On the day, the respondent’s representative submitted that he could not secure the attendance of that witness and decided to close the case.
I recorded the proceedings digitally. The applicant’s bundle of documents is marked ‘A’ and the Respondent’s bundle is marked ‘R’. The parties submitted their closing arguments on 17 December 2025.

BACKGROUND TO THE ISSUES

The applicant, the second respondent, and another candidate were shortlisted and interviewed for the promotional post of a Deputy School Principal. The second respondent, Mr Habane, was appointed to the position. The applicant was aggrieved by a decision not to appoint her.
The applicant referred the dispute of unfair labour practice relating to promotion to the Council for conciliation. The dispute could not be resolved, and a certificate of the outcome for conciliation to that effect was issued. The applicant requested that the dispute be arbitrated.

ISSUES TO BE DECIDED

I am required to decide whether the respondent’s failure to appoint the applicant to the position constitutes an act of unfair labour practice. Substantively, I must determine if he was the best suitable candidate for the position. In establishing same I determine the following disputed factors:
5.1 If the Applicant misrepresented himself and did not disclose his criminal record.
5.2 If he signed an acceptance certificate on 8 September 2021 without reading, and if he was aware of what he was signing for.
5.3 If, in his application for the Deputy Principal position, he misunderstood what was required of him on the application form when he indicated that he did not have a criminal record, and if he disclosed the criminal record, it would be against him.
5.4 If the Deputy Principal position is a managerial post requiring honesty, and his misrepresentation disqualified him.
5.5 If an educator with a murder offence can be appointed as a Deputy Principal.
Should I find in favour of the applicant, I will further determine the appropriate relief.
The applicant seeks that the decision to appoint the second respondent be set aside
and that he be appointed to the position under review. SURVEY OF EVIDENCE AND ARGUMENTS AGREED FACTORS
The parties agreed to the following factors as being common cause: –
7.1. The applicant is a Post–level 2 Educator. He was convicted of a criminal offence of murder in 2011 and served a 9-year sentence. He was released in 2018.
7.2. The Applicant was integrated into the system after applying for a post at Lawley Primary School in November 2020. He was employed by the school Governing Body (SGB).
7.3. On 08 September 2021, the Applicant signed an acceptance certificate for a Post-level 2 position at Poopedi Primary School, which indicated that he did not have a criminal record. When he applied for a Post–level 1 position, he did not fill out the criminal record part on the form.
7.4. When he applied for the post of Deputy Principal at Poopedi Primary School in 2023, he was shortlisted, interviewed, and recommended for the position as he ranked number one.
7.5. Other than the criminal record, he met the requirements for the position. The SGB recommended three candidates for the position. The second Respondent met the minimum requirements and ranked third.
7.6. The candidate who ranked number two was appointed to another school. The second Respondent was appointed on 01 July 2025. The reasons provided by the Respondent for not appointing the Applicant were that the candidate misrepresented himself on the GDE 2 form by stating that he did not have a criminal record.
7.7. It was later picked up after verification that he has a criminal record of murder. He was not appointed as Deputy Principal due to the alleged misrepresentation and the gravity of the criminal offence.
Piet Makhalemele testified that in 2018, he was advised to request reinstatement in writing to Human Resources. He disclosed his criminal record to the respondent and the South African Council for Educators (SACE). He was informed that he was eligible for reinstatement because he had resigned rather than been dismissed for the criminal offence. Following the submission of the request, the SGB employed him. Despite his diligent follow-ups, he was unable to obtain from the respondent a copy of the letter which disclosed his criminal record to present as evidence.
In November 2020, he applied for the permanent Post-level 1 with the respondent and he was successful. He did not disclose his criminal record on the employment application form, which he completed and signed on 11 November 2020.
His application form is on R50. He did not complete the section on the application form where asked about his criminal offence. The reason is that the question relates to the criminal offence that occurred after he returned to the system.He had already written aletter to the HOD about his criminal record when he applied for the SGB post in 2018, hence the question was not relevant and applicable to him.
He signed the acceptance certificate that he did not have a criminal record for Post level 2 position in 2021 by mistake because he was excited and did not read what he was signing for on the form.
When he applied for the Deputy Principal post, he ticked ‘No’ to the question of whether ‘he had been convicted of a criminal offence’ as, according to him, the question referred to the criminal offence that occurred after his release from prison and return to the system as an educator.
R10 is SAP 69, a request for his criminal record dated February 2024. The criminal record results are on R12. The respondent took him for fingerprints and was aware of his criminal record during this period and before his reinstatement in 2018.
His criminal record could not deter him from being appointed to the position of Deputy Principal. He was already an educator and, as such, entitled to apply for any other promotional posts. Educators are more exposed to learners than a Deputy Principal, even if his criminal record was relevant.
During cross-examination, he indicated thatthe question was not asking him about the previousoffences. However, it was asking him about the offenceshe might have committed after he had returned to the system. He denied misrepresenting himself on the form.
When he applied for the position of theDeputy Principal, he was already in the system, and the respondent was aware of his criminal record. He conceded that he signed the application form after reading the declaration on the application form, which stated thatthe information provided must be true and correct, and that any false or incorrect information could lead toan application being eliminated, and a candidate would be charged for misconduct if appointed.
He completed and answered about whether he had a sexualoffence becausehe understood the question. He made a mistake by indicating on the form that heserved as a Departmental Head between 2011 and 2018, as he was serving a prison sentence during this period. The murder had nothing to do with trust and handling money as the Deputy Principal. His criminal record stands until his application for its expungement is successful.
Lola Malimagovhatestifed that she is the Human Resources Unit coordinator “ASD”.The applicant misrepresented himselfon GDE 2R application form by ticking ‘No’ on the criminal offencequestion despite knowing that he has acriminal record. The outcome of the verification check confirmed that he has a criminal record.
He could not have misunderstood the question on the application form that asked him if he committed any criminal offence. The question did not ask for any specific time about the commission of the offence. When there are posts, the HR office relies only on the application forms, not any other documents. The criminal record results were received after the verification process. Following the verification results, she submitted his file to theDistrict Director for determination.
During cross-examination, she conceded that an educator with a murder criminal record is eligible to be appointed a Deputy Principal, provided he had declared the criminal record. He could not have misunderstood whether you have a criminal record or not. The criminal record does not change. Her part ended when she submitted the verification results to the District Director. CLOSING ARGUMENTS
The applicant’s representative argued that the verifications were signed off in March 2025. In 2021, the verification was done on the applicant, proving that despite the applicant indicating that he did not have a criminal record in 2021, the respondent verified and approved him.
Clause 16.5 of the Collective Agreement 1 of 2021 provides that the outcome of the verification process will not be used to prejudice any recommended candidate by the school governing body. Should there be evidence that the candidate misrepresented himself/herself in the application form, the HOD or his/her delegated authority will advise the SGB accordingly. Where the outcome is negative, the HOD will advise the SGB chairperson to commit in providing a remedial process under the guidance of the District Director if they still want to continue with the recommended candidates. The District Director still reserves the right to make up an appointment in terms of the Act.
There is no evidence presented that clause 16.5 was complied with, as the District Director or HOD was not called to testify. Misrepresentation is not a disqualifying factor. The applicant disclosed his criminal record in 2020 to the SGB and was appointed as he was found to be suitable. He genuinely misunderstood the form as he knew that the respondent was aware of his criminal record.
In Connor v LexisNexis(P18/24) [2024] ZALCPE 11 it was held that refusal to employ because of criminal history was unfair discrimination based on arbitrary grounds, especially where the criminal history is not relevant to the inherent requirements of the job.
The respondent had committed an act of unfair labour practice by failing to appoint the applicant to the position.
The respondent argued that the applicant contradicted himself as he understood the question on sexual offence, which proves that he understoodthe question on criminal record.
The two questions are the same, with the answer being either YES or NO.
Whenever asked about whether he had a criminal record, he would misrepresent
himself. He mispresented himself on many occasions when he applied for the post
of Level 1 in 2020, and when he was appointed as a Departmental Head in
September 2021, and in 2023 on the Deputy Principal application form. He was
dishonest.
He misrepresented himself further by indicating on the form that
hewasemployedas an HOD in theperiodbetween 2011 and 2018, yet he was
serving a prison sentence and was released in 2019. This was not a mistake; he
concealed this as he wanted to be shortlisted and appointed as a deputy principal.
He did not want anyone to know that he had a criminal record. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC). The Court held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of discretion by a party, including the exercise of the discretion,or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of the discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle.
Therefore, the 1st respondent’s decision to appoint the 2nd respondent was reasonable and fair. It should not be interfered with. The applicant failed to prove the act of unfair labour practice. The dispute should be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
The applicant bears the onus to prove that the respondent committed an act of
unfair labour practice when it did not appoint him to the Deputy Principal Post.
In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14)
LC, the court held that in promotion disputes, it is not enough to merely show that
there is a breach of protocol or procedures in the recruitment process. It is also
necessary for an Employee to show that the breach of the procedure had unfairly
prejudiced him/her. Meaning that the employee must not merely show that he/she
was a suitable candidate for consideration, but that he/she was the best candidate.
The reasons the respondent advanced for failing to appoint the applicant despite having been ranked number one by the SGB’s recommendation were primarily misrepresentation for his failure to disclose his criminal record. Secondly, he was not eligible to be appointed as a Deputy Principal with a criminal record of murder due to the gravity of the crime.
The respondent’s witness contradicted the respondent’s contention that the applicant was not eligible for the Deputy Principal position. Her testimony was that he was eligible for the appointment to the post, provided he had disclosed or declared his criminal record.
I am persuaded that the reason the respondent enquired about the criminal record during the application is to enable it to eliminate the offenders not suitable for posts. Furthermore, to afford the candidates a fair opportunity to compete for the post and the respondent to make an informed decision to shortlist and appoint the best suitable candidate. However, the contradiction is not that material because the eligibility is the secondary reason for not appointing him.
The crux of his non-appointment is whether the applicant misrepresented his criminal record, or not, and if the misrepresentation, if any, justified the respondent’s decision not to appoint. Simply stated, I must determine if the applicant misrepresented himself and if such misrepresentation disqualified him. The eligibility is secondary. In light of this, I now determine the existence of misrepresentation.
Does the applicant’s failure to complete in his Deputy Principal application form in 2023 that he was convicted of a criminal offence constitute a misrepresentation? The applicant’s failure to disclose his criminal record in 2020 and 2021 is relevant to corroborate and prove the pattern that the applicant intended to misrepresent the facts in the 2023 application. There is an overwhelming link between the incidents.
The applicant conceded that the criminal record stands until expunged. It is common cause that his criminal record was not expunged. He is disingenuous to assert that it was proper for him to disclose it selectively. The record did not end when he returned to the system. It is immaterial whether the respondent was aware of the record or not. The applicant was liable to state the record at all times when asked.
Furthermore, the respondent’s verification of his status is immaterial as it does not exonerate him from failure to declare. In considering that it is common cause that the respondent picked up the applicant’s criminal record from the verification outcome, his contention that the respondent was aware is misplaced.
Worse for the applicant, he failed to present evidence that he made the respondent aware of his murder criminal record at any stage. It is common cause that when he was sentenced in 2011, he was not dismissed for the crime but resigned. He failed to present evidence that he declared the criminal record to the respondent when he returned to the system. He simply stated he was unable to retrieve the declaration from the respondent.
The applicant is not a reliable and credible witness because he was able to answer negatively if he had committed sexual offences without a period stated, but selectively did the opposite when asked about the criminal record; a positive response could have been positive.
His version is contradictory. At some point, he was under the impression that the criminal record was for the incident that he might have committed after returning to the system. When it suited him, it was a mistake or he was excited to sign without reading. All these contradict his concession that he signed the application form after reading the declaration on the application form, which stated that ‘the information provided must be true and correct, and that any false or incorrect information could lead toan application being eliminated, and a candidate would be charged for misconduct if appointed’.
Furthermore, his defence that he believed the criminal conviction asked in the application forms referred to the period after his return to the system is a fallacy. The application forms for 2020, 2021, and 2023, and the appointment certificate, did not state the period during which the criminal offence was committed. This supports the reasoning why the criminal record stands until expunged.
The pattern in three applications strongly displays that he was persistent in withholding the facts from the respondent. The fact that he misrepresented himself in 2021 that he served as a HOD from 2011 to 2018, when in fact he was in prison, exacerbates his motive. This was deliberate, not a mistake. This proves on the balance of probability that he had the intention to conceal the fact that he has a criminal record. It is common cause that he failed to declare his criminal record, which he had with the intention to misrepresent the facts.
The respondent’s evidence and argument is that his misrepresentation on an essential aspect destroyed the trust required and expected from a Deputy Principal. I cannot agree more that the position is a managerial post requiring a high level of trust. Concealing this information proves that he was aware that it would hinder his appointment if revealed.
It was held in the Department of Home Affairs v Ndlovu and Others (DA 11/2012) [2014] ZALAC 11;[2014 9 BLLR 851 (LAC);(2014) 35 ILJ 3340 (LAC) that “ dishonesty can consist of any act or omission which entails deceit. This may include withholding information from the employer, or making a false statement or misrepresentation with the intention of deceiving the employer…”. The extract was referred with the approval by the Constitutional Court in CEPPWAWU obo Hlobela and Lonmin Precious Metals Refinery (2011) 32 ILJ at paragraph 69. A misrepresentation by an Employee has been held sufficient to warrant dismissal even if it is discovered some time later and the Employee has rendered satisfactory performance.
I am of the view that the principle held by courts relating to dismissal for misrepresentation is applicable and squarely fit in promotion cases.
The Court in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), held that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions.
It was not a factor in dispute that the HOD did not comply with clause 16.5 of the collective agreement 1 of 2021 that if there is evidence that the candidate misrepresented himself/herself in the application form, the HOD or his/her delegated authority will advise the SGB accordingly. Where the outcome is negative, the HOD will advise the SGB chairperson to commit in providing a remedial process under the guidance of the District Director if they still want to continue with the recommended candidates.
As such, the evidence was not presented on this aspect because it was not in dispute. The aspect was raised only in the applicant’s arguments. I am inclined to disregard this argument.
The applicant failed to prove that he was the best candidate and that the decision taken by the respondent not to promote him was based on any of the negative factors mentioned in the City of Cape Town case supra. He did not challenge the respondent’s decision that Mr Habane is the best candidate.
Mr Habane was among the recommended candidates. The second was not available for an appointment as he was appointed at another school. Clause 6 (f).1 of the Employment of Educators Act 76 of 1998 provides that, despite the order of preference in (c) and subject to (d) recommended by the SGB, the HOD may appoint any suitable candidate on the list.
In the premises, the applicant failed to prove on the balance of probabilities that the respondent committed an act of unfair labour practice for not appointing him to the promotional post in dispute.