Case Number: ELRC613 – 24/25EC

Commissioner: Henk Jacobs

Date of the award: 07 May 2025

In the matter between

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held at the offices of the 1^st Respondent, Humansdorp, on 18 February 2025, 24 and 25 April 2025.

• The applicant, Ms Chantelle Fourie, was represented by Ms V Van Wyk, an official from the Suid Afrikaanse Onderwys Unie (SAOU), the 1^st respondent, the Education Department – Eastern Cape, was represented by Mr G Jacobs, a Senior Employment Relations Officer employed by the Respondent and the second respondent, Ms L Mjaja, represented by Mr T Mqolomba, an official from the South African Democratic Teachers Union (SADTU).

• The hearing was held in English and was digitally recorded.  

• Parties agree to file heads of argument by no later than 30 April 2025, both parties did so.

Issue to be decided

• The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not appointing the Applicant for the post of Departmental Head at Jefferey’s Bay Comprehensive High School.

Background to the matter

• The Applicant referred an alleged unfair labour practice dispute pertaining promotion to the Education Labour Relations Council (ELRC) after she applied for the post of Departmental Head at Jeffreys Bay Comprehensive High School, as advertised in volume 2/2024, the Applicant was shortlisted and interviewed, but not recommended for the post, the second Respondent was recommended and appointed.

• The Applicant sought to be appointed of the second Respondent be set aside and the post be re-advertised.

Parties concluded a pre-arbitration minute, the Applicant confirmed that the only issue in dispute is that the 2^nd Respondent did not meet the minimum requirements of the post with regards to the medium of instruction which was Afrikaans and English.

                     Survey of submissions

• This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.

Applicant’s evidence

• Mr Napoleon testified that he is employed as the Deputy Principal at Jefferey’s Bay Comprehensive High School and is in control of the curriculum of the school. The medium of instruction at the school is English and Afrikaans, about 52 percent of the learners are Afrikaans speaking and 48 percent is English speaking.

1. The school is s dual medium school, it was important that the post was advertised as an English and Afrikaans school as the incumbent needs to be able to advice, motivate learners and teachers, and moderate papers written in both languages. The incumbent is not able to communicate in Afrikaans; they now need to divide a small group of learners for mathematics into two groups so that the Afrikaans speaking learners can be taught separately to accommodate the 2^nd Respondents shortcomings.

1. Page 24 of the bundle is the application form for the 2^nd Respondent and section C (16) indicates that the 2^nd Respondent status regarding Afrikaans as follows: Speak-Developing, Read- Developing and Write- Not Established.

1. Under cross-examination, Mr Napoleon stated that the “/” used in the advertisement for the post was incorrectly applied and its meaning inn terms of the post requirements submitted to the 1^st Respondent for advertising made reference to English and Afrikaans instead of English or Afrikaans.

Analysis

1. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

1. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”.

1. It is common cause that the Applicant challenge the 1^st Respondents decision to appoint the 2^nd Respondent to the post of Departmental Head. The only issue in dispute is whether the 2^nd Respondent meet the minimum requirements of the post.

1. The only evidence before me is that the advert should have reads English and Afrikaans, but that the post was advertised as English or Afrikaans. The 2^nd Respondent applied, she was shortlisted, and she was ranked number 1 after the interviews, and the Applicant was ranked number 3 as per page 6 of the bundle.

1. The definition of an unfair labour practice defined the act to be between the employer and the employee, in this instance the Applicant. The question to answer is whether the Applicant was prejudiced through the appointment of the 2^nd Respondent.

1. In Buffalo City Public FET College v CCMA and others (P 372/12) [2016] ZALCPE 18 (handed down on 4 November 2016) it was held that in unfair labour practice disputes, such as those relating to promotions, the onus is on the Employee to prove that s/he is a suitable and better candidate for the position in question.

1. Herein is the issue, the Applicant did not demonstrate that she would be a better candidate than the 2^nd Respondent, was the Applicant ranked second place and could demonstrate that she was a better candidate, one could then look at the merits of the 2^nd Respondents appointment. Even if the 2^nd Respondent was not appointed, the Applicant would not have been appointed, therefore, the appointment of the 2^nd Respondent did not prejudice her at all, hence, no unfair labour practice could have existed between the employer and the employee.

• Not only was the Applicant required to prove that she was a better candidate than the 2^nd Respondent, but she should also have established that she was a better candidate than S Solomon who was ranked second, this was not established, hence, no prejudice exist.

• In National Commissioner of the SAPS v SSSBC and others [2005] 26 ILJ 903 (LC) the Court held that the complainant must prove that there is a causal connection between the unfairness complained of and the prejudice suffered.
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• Should the school be unhappy with the 2^nd Respondents appointment due to her inability to communicate in Afrikaans, they cannot rely in an alleged unfair labour practice dispute to remedy her appointment; in passing, they may follow the route of incapacity. The Applicant in arguments submits that the Education Department failed the SGB of the school as they are struggling to execute their duties in terms of the recruitment processes. Even if we have to accept that, there must be a nexus between the appointment of the 2^nd Respondent and the unfairness thereof towards the Applicant, the Applicant was ranked third, therefore there can be no nexus between the appointment of the 2^nd Respondent and the Applicant. 

• In passing, I find it relevant to deal with the issue of the witnesses who were subpoenaed and failed to appear and in order to stop same form happening in the future and for SGB’s and accounting officers to be held accountable, contempt proceedings may be instituted through the ELRC, but a more speedily process would be for the 1^st Respondent to institute disciplinary proceedings against employees who were required to testify in proceedings and refuse or fail to do so.

• In passing, the 1^st Respondent has a duty to ensure that their witnesses appear to set out the events that occurred during the alleged incidents.

• In light of the above, I find it appropriate to make the following award.

Award

• The Applicant, Ms Chantele Fourie, failed to establish that the Respondent, the Education Department – Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.

• The Applicant is not entitled to any relief.

Signature:

Commissioner: Henk Jacobs