Case Number: ELRC558-25/26 GP

Commissioner: Vusumuzi Eugene Moyo
Date of Award: 06 March 2026

In the ARBITRATION between

NEHAWU obo Sadiq, Mashudu Jamilla APPLICANT

And

Department of Higher Education & Training RESPONDENT

DETAILS OF HEARING AND REPRESENTATION

1. This is an arbitration award issued in terms of Section 138(7)(a) of the Labour Relations Act 66 of 1995 as amended (hereafter referred to as “LRA”). The arbitration process was held virtually over a period of three days under the auspices of the ELRC.
2. The Applicant was represented by Mr Themba Mntameka, an Official of NEHAWU. The Respondent was represented initially by Ms Nqobile Zondi, Labour Relations Officer at South West Gauteng College. These proceedings were conducted in English. Submissions were both digitally and manually recorded.

ISSUE TO BE DECIDED

3. Whether the Applicant was subjected to an unfair labour practice related to benefits or not.

RELIEF SOUGHT

4. The Applicant sought a retrospective upgrade to REQV14 (Relative Education Qualification Value 14) as a remedy for the alleged unfair labour practice in terms of Section 193 of the LRA.

BACKGROUND TO THE ISSUE

5. The Applicant is currently a Lecturer at South West Gauteng College. With the assistance of her preferred trade union, she referred the matter to the ELRC as she is aggrieved due to this alleged failure to be upgraded to REQV14 after acquiring a further qualification.
6. The Respondent is the Department of Education in Gauteng. Bundles of documents were exchanged virtually by the parties. The authenticity and veracity of some of these documents was not disputed.

SURVEY OF EVIDENCE AND ARGUMENT

7. As noted above in paragraph 2, these proceedings were digitally recorded, what appears here under constitutes a summary of the evidence adduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a comprehensive minute of what transpired during the course of these proceedings. Section 138(7)(a) of the LRA stipulates that within 14 days of conclusion of the arbitration proceedings the Commissioner must issue an arbitration award with brief reasons. What follows underneath accordingly serves as my brief reasons:
8. The first witness was the Applicant, Ms Mashudu Jamilla Sadiq. She testified under oath that she is currently employed by the Respondent as a Lecturer at the REQV13 level.
9. On the 10th of October 2023 she attained a B Ed qualification. On the 28th of May 2024 she submitted her qualification upgrade and SACE Certificate to the HOA Office. She testified that she never received an acknowledgement of receipt for the submission.
10. The Applicant further submitted a Lecturer Qualification Improvement Application form on the 21st of June 2024. This form was signed by the Acting Campus Manager, Mr Nerondwe and Mr Mnyamani, the Principal.
11. The Applicant’s frustration stem from her observation that she submitted her qualification on the same date with Ms Maphanga. To her surprise, Ms Maphanga was upgraded while she was ignored. There was no communication from HR as to why she was not upgraded. The Applicant testified on the numerous occasions that she made follow ups with Head Office to no avail. She spoke to Lebo and Mmatshepo Santo but there was still no progress. Her email sent to Mmatshepo Santo on the 25th of January 2025 has to date not received any response. Another email sent to Lebo Mamoe on the 24th of February 2025 did not get a response as well. A grievance lodged by the Applicant was also ignored.
12. The Applicant testified on how this has affected her financially, professionally and how this has led to her demotivation.
13. The Applicant specified under cross examination that she submitted her application to Mr Moja at HOA. The Applicant conceded that she was asked to submit an affidavit and a job description. However, she was reluctant on doing so as none of her colleagues (Ms Nkala and Maphanga) had ever been subjected to such treatment.
14. Ms Zandile Maphanga testified under oath as the second witness for the Applicant party. She corroborated the Applicant’s testimony on the submissions that they made together on the 24th of May 2024. She further confirmed that the documents were submitted to the HR Officer, Mr Moja. Nothing significant came from minimal cross examination.
15. The Respondent elected to close its case without calling any witnesses. They further elected not to submit any closing arguments.
16. Closing arguments were submitted by the Applicant party.

ANALYSIS OF EVIDENCE AND ARGUMENT

17. Section 185 of the LRA stipulates that every employee has the right not to be subjected to an unfair labour practice.
18. Section 186(2) provides that; (i) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving — (ii) 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”.
19. In casu, the dispute is about an alleged unfair labour practice related to benefits whereby the Applicant is being paid a salary of a Lecturer who is in possession of an REQV13 qualification instead of a Lecturer who is in possession of REQV14 qualification. The Applicant was burdened with the onus to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to the alleged unfair labour practice.
20. I am therefore required to determine whether the Respondent’s conduct was fair or unfair in failing to pay the Applicant’s appropriate salary while in possession of REQV 14 qualification. To succeed in such a claim, the Applicant must show that the Respondent’s conduct was arbitrary, capricious and therefore unfair.
21. In Aries v CCMA & Others (2006) 27 ILJ 2324 the Labour 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 a 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 a 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 or in a biased manner”.
22. It is common cause that the Applicant is in possession of REQV 14 qualification. It was not disputed that the qualification documents were submitted to Mr Moja on the 28th of May 2024.
23. Under the circumstances, I find that the Applicant has succeeded in discharging her onus to prove her claim that the Respondent has committed an unfair labour practice related to benefits in failing to accordingly adjust her salary.
24. In the premises, I make the following order:

AWARD

25. The Applicant, Ms Mashudu Jamilla Sadiq, was subjected to an unfair labour practice by the Respondent, Department of Higher Education & Training. For this reason, I order the Respondent to adjust the Applicant’s salary to that of a Lecturer who is in possession of REQV14 qualification.
26. The above-mentioned salary adjustment must be effected retrospectively from the 01 June 2024 and the Applicant must be paid all the additional notches to date that she would have earned had payment been effected timeously.
27. The salary adjustment and all backpay must be effected before the 31st of March 2026.
28. I make no order as to costs.

Dated and signed on the 06th of March 2026.

Vusumuzi Eugene Moyo
ELRC Commissioner