09 June 2026 – ELRC1116-25/26LP

IN THE MATTER BETWEEN

PHEAGA HARRY MPHAGO APPLICANT

AND

DEPARTMENT OF EDUCATION LIMPOPO RESPONDENT

CASE NUMB: ELRC 1116-25/26LP
DATE OF THE AWARD: 8 JUNE 2026
ELRC ARBITRATOR: THOMAS MAHASHA
:
DETAILS OF THE HEARING AND REPRESENTATION

1) Arbitration hearing took place in terms of the referral of the matter by the employee to the ELRC. The employee referred an unfair labour practice dispute relating to promotion. The matter was set down for arbitration on 27 March 2026 and 20 May 2026 respectively, at 113 Biccard Street, Polokwane, Department of Education, Limpopo. The employee was in attendance and represented by Hezekiel Madire of SADTU. The employer was, represented by Nthabiseng Rasebotsa, the Assistant Director: Labour Relations, attached to grievances and dispute resolution directorate.

  ISSUES TO BE DECIDED

2) Whether the dispute was prematurely referred, and if not whether in not promoting the employee, the employer acted unfairly.

BACKGROUND TO THE DISPUTE

3) The employee is a CS1 educator attached to Helen Franz Special School. The employer issued an open vacancy list for the Deputy Principal’s posts dated 14 April 2025. The employee applied for a post (P3) attached to Helen Franz Special School. He and the other three candidates, Mahlakgame R, Mmatli SD and Rasefate LL were shortlisted and interviewed. The employee was recommended for appointment by both the interview panel and the SGB on 02/09/2025.
4) Both recommendations were sent to the District office for quality assurance. During the finalization of the appointment, the school was served with a new post establishment dated 30 September 2025. In terms of the new post establishment, the number of Deputy Principals at Helen Franz was reduced from two (2) to one (1). It was for that reason that despite Mmatli declining an offer of appointment, the employer could not move to consider appointing any of the interviewed candidates.
5) Upon receipt of the recommendations and on advice by Corporate Director, the District Director dispensed with both recommendations and offered an appointment to Mmatli S.D to be the Deputy Principal of Helen Franz Special School. Mmatli declined appointment on the basis that he was already appointed at his preferred school.
6) Aggrieved by the decision not to appoint him, the employee lodged a grievance which was dismissed. It was for that reason that he declared a dispute with the ELRC, seeking appointment to a promotional post.
7) The employee’s case is based on the fact that the SGB had recommended him for appointment, that he has the required minimum managerial experience and that if his appointment was effected timeously, the new staff establishment would not have applied to him.
8) Affirmative action does not apply in this case. The employer disputes the employee’s claims that he was the best candidate.

SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYEE’S EVIDENCE
Pheaga Harry Mphago testified under oath was as follows:

9) He is the best candidate with a track record of good managerial experience as agreed to by both the short listing and interview panels.
10) The fact that he was ranked higher than the other candidates and also recommended for appointment is proof enough that he was the best candidate.
11) The employer acted unfairly in not appointing him on the basis that he is a CS1 educator. He knows of other CS1 candidates who were promoted to Deputy Principal’s posts.
12) The Circuit Manager committed misconduct by communicating a message a day prior to interviews advising panelists not to shortlist CS1 educators to Deputy Principal posts.
13) In terms of the letter dated 26 September 2025, any appointment affected by the new post establishment, shall be redeployed accordingly. The employer should have appointed him before declaring him additional to the post establishment.
14) He does not have proof that he assisted the school in managerial duties, such as issuing testimonials to learners and other employees. He performed same duties for a period of five years.
15) According to him, managerial experience applies to him because he had been managing curriculum in English at Limpopo Province. Although there is no educator reporting to him at school, he is a senior marker and a deputy chief marker.
16) The employer had no authority to deviate from the recommendations made by the School Governing Body.
17) He agreed that the new post establishment abolished post number 30 which he had applied for. If the employer had expedited his appointment, he should been redeployed elsewhere holding the position of a Deputy Principal.

18) He could not provide a comment whether Mmatli’s appointment was made on 30 September 2025.

EMPLOYER’S EVIDENCE
Laurence Chipa testified under oath as follows:

19) He holds the position of Corporate Manager at Capricorn District. It is his responsibility to do quality assurance after receiving the applications and recommendations. After checking the employee’s documents, he discovered that they did not meet some of the requirements. Collective Agreement empowers him to check each application by revisiting the curriculum vitae to confirm if the candidate has the required managerial experience. He discovered that the employee’s CV did not speak to managerial experience as a School Management member. Instead, his managerial experience was curriculum related or non-teaching experience serving in IEC and Statistics South Africa, which he considered to be irrelevant. To be a subject co-ordinator does not require managerial experience. In the contrary, SMT members have a responsibility to manage subordinates.
20) After quality assuring, he discovered that the employee did not meet the minimum requirements of the post, and that his shortlisting, interview and recommendation was erroneous. He was supposed to have been shortlisted out at phase 2 for want of managerial experience.
21) The District Director called SGB members to correct the anomaly. SGB members refused to redo the process and delegated the District Director to identify any qualifying candidate from those recommended. It was for that reason that Mr Mmatli was given an offer. When Mr Mmatli declined the offer, the District Director considered other candidates. They were found not to be meeting the requirements of the post.
22) In the converse, Mr Matli served as a Head of Department since August 2024.
23) SGB’s do not have powers to appoint. They can only do recommendations which justifiably, may be dispensed with.
24) At the time of Mr Mmatli declining the offer, the employer already had a new post establishment which rendered post 30 obsolete.
25) According to clause 2.3 of Circular 133 of 2025, any appointee whose position is affected by the 2026 post establishment will be redeployed accordingly. The circular did not apply to the employee since he was not appointed.

Point in limine
Extempore ruling
26) The employer raised a point in limine alleging that the referral was prematurely made since there was no appointment. It is trite that Collective Agreement 3 of 2016 finds application in determining whether a dispute was prematurely referred or not.
I do not agree with the employer that he dispute was prematurely referred. An offer of appointment was made on 17 November 2025. Considering the employee’s submission that the dispute arose on 12 December 2025, it is only logical that it could have been referred thereafter. The dispute was therefore, not prematurely referred.

ANALYSIS OF ARGUMENTS AND FINDINGS

27) Section 186(2) (a) of the Labour Relations Act 66 of 1995(the LRA), provides: “unfair labour practice means any act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
28) The employee’s dispute relates to promotion from position of a CS1 educator to a Deputy Principal.
29) It was not in dispute that the employee applied for a promotional post in the public sector. He was shortlisted, interviewed and recommended for appointment. It is also common cause that recommendations were not agreed to by the District Director on allegations of the employee not having the necessary managerial experience.
30) It is in terms of clause 29 of Collective Agreement 3 of 2016 that only a conduct of the employer in relation to promotion can constitute an unfair labour practice. The question is whether in dispensing with the SGB’s recommendation, the employer committed an unfair labour practice.
31) It is trite that the employer raised two reasons for not promoting the employee; relevant managerial experience and the fact that post 30 was rendered obsolete by the new school post establishment.

Managerial experience as a requirement

32) It is trite that in terms of item 4.4 of PAM (Personnel Administrative Measures) CS1 educators report to Heads of Department (HOD’s) of specific subjects or learning areas. The role of an HOD is to engage in class teaching, be responsible for the effective functioning of the department and organize relevant/related extra-curricular activities so as to ensure that the subject, learning area or phase and the education of learners is promoted in a proper manner. Other responsibilities include, but not limited to teaching, extra and curricular activities, advising the Principal about division of work among the staff in the department and general administrative duties.
33) In the contrary, an educator of a public school is in terms of item 4.5 of PAM responsible for teaching. His responsibilities excludes managing personnel which is one of the core functions of a Deputy Principal and a Principal.
34) According to item 2.2 a Deputy Principal’s post is graded at post level 3 which requires a minimum of five years appropriate experience. It is common cause that the post required a minimum of five years managerial experience. There was no evidence that the employee had the required minimum managerial experience of five years, which if present, would in terms of PAM find application in an HOD’s post or as a result of proved delegated duties.
35) I agree with the employer that the employee did not meet the minimum requirements of the post and that he was erroneously shortlisted. Ordinarily, the District Director would under normal circumstances, have considered giving an offer to the second recommended candidate, which the employer did but the candiodate Mr Matli declined the offer. The employer’s testimony that all the other candidates did not meet the requirements of the advertised post was unassailable. Unchallenged ample evidence by the employer was presented to prove same.
36) In the absence of evidence that the employee had the required managerial experience, it cannot be said that he was the best candidate. The fact that he was scored higher than the other candidates cannot under the circumstances, be the only justification that he was the best candidate.
37) The employer presented conclusive evidence that the shortlisting panel committed an error by shortlisting him without meeting the requirements of the post. His claim for being the best candidate is without legal basis and can therefore not be sustained.

Effect of the new post establishment.

38) The employer has the unilateral prerogative to decide whether to fill a position, re-grade it, or withdraw the advert entirely before any offer is made. In this case, the employee was not given an offer but was just erroneously recommended by the SGB. The offer was instead given to Mr Mmatli, who declined it.
39) A new 2026 post establishment which reduced the number of Deputy Principals of Hellen Franz Special School came into operation during September 2025, being a period in which Mr Mmatli was given an offer.
40) According to Clause 2.3 of Circular 133 of 2025, any appointee whose position is affected by the 2026 post establishment will be redeployed accordingly. I agree with the employer that the Circular did not apply to the employee since he was not appointed nor given an offer.
41) Clause 2.3 of Circular 133 of 2025 referred to above, did not disempower the employer to appoint candidates who would be affected by the 2026 post establishment. However, only those appointed educators would be affected, resulting in redeployment. The employee could not have been affected by the effects of the new post establishment because a recommendation to appoint him was not approved.
42) The new post establishment was an intervening impossibility which for all purposes and intents, would ordinarily render re-advertisement of the post impossible.
43) In Arries v CCMA & Others (2006) 27 ILJ 2324 (LC) it was held that: “promotion disputes should be assessed , not according to the grossly unreasonable test, but against a test of fairness taking into account inter alia the following:

Whether the employer’s decision was arbitrary, or capricious, or unfair; or
Whether the employer failed to apply its mind to the promotion of the employee;
Whether the employer’s decision not to promote was motivated by bad faith or discriminatory;
Whether there were unsubstantial reasons for the employer’s decision not to promote;
Whether the employer’s decision not to promote was based on a wrong principle;
Whether the employer’s decision not to promote was taken in a biased manner”.

44) The employee had the onus to prove on a balance of probabilities that the employer committed an unfair labour practice relating to promotion; put differently, that any of the above factors is applicable.
45) It was not contested that the employee did not have managerial experience. Senior Markers and Deputy Chief Markers may not necessarily be managers. Put differently, you do not have to be a manager to be a Senior Marker ad a Chief Maker. In a school environment, CS1 educators report to either an HDO, a Deputy Principal or a Principal. A CS1 does not ordinarily have subordinates reporting to him unless performing delegated managerial functions.
46) It was not disputed by the employee that the shortlisted candidates and the appointed candidate met the requirements to be shortlisted in line with the requirements of the advertised post.
47) Failure to give an offer to a candidate who does not meet the requirements of the advertised post cannot constitute an unfair labour practice. The employee had to show on a balance of probabilities that comparably, he was the best candidate.
48) After being recommended, it does not follow that a candidate would automatically be appointed. His application and recommendations still had to be subjected to quality assessment before a final decision to promote is taken.
49) The appointment and promotion of employees falls squarely within the domain of the employer, who has to effect promotion in accordance with the requirements for the post. It is the employer who must select the best suitable candidate particularly where there is more than one candidate qualifying for the position.
50) The employer’s failure to appoint the employee would in my view, be arbitrary, or capricious, or unfair; if the employee had the necessary managerial experience and the post in question, is not affected by the new staff establishment.
51) Jammy AJ in Provincial Administration Western Cape ( Department of Health & Social Sciences) v Bikwani & Others (2002) 23 ILJ 761 (LC) held that: “ There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment, selection and appointment process….Courts should be careful not to intervene too readily to disputes regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present” .
52) There was no basis upon the employee’s allegation that a decision not to appoint him, was unfair, based on wrong principle or marred by bad faith.
53) In other words, the employee failed to prove that the employer’s conduct had been unfair to him.
54) The employer’s decision can only be interfered with if it could be demonstrated that the discretion was capriciously, or for unsubstantiated reasons, or based upon any wrong principle in a biased manner, which I find was not in this matter.
55) I therefore find that the employee failed to prove on a balance of probabilities, that the employer had committed an unfair labour practice relating to promotion.

AWARD
56) The respondent, Limpopo Department of Education acted fairly in not promoting the employee.
57) The employee’s dispute is dismissed.