10 February 2026 – ELRC303-25/26WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC303-25/26WC

In the matter between

JD Joos Applicant

and

Education Department of Western Cape First Respondent

JD Norman Second Respondent

PANELLIST: Dr. GC. van der Berg.
DATE OF AWARD: 10 February 2026

ARBITRATION AWARD

Details of hearing and representation

The arbitration was held on 14 August 2025 at 09:00 via digital video conference (Zoom). The applicant, Jayson Joos, represented himself. The respondent, Education Department of Western Cape, was represented by Frederich Scholtz from the education department. The successful candidate, JD Norman, was not present as she has not yet joined. A ruling was issued on 14 August 2025 to join the successful candidate and regarding legal representation.
Further arbitration hearings took place via digital video conference (ZOOM) on 21 October 2025 and 28 January 2026 at 09:00. The proceedings were both digitally and manually recorded. The applicant, Jayson Joos was represented by Melani Thorne, a legal representative. The first respondent, Western Cape Department of Education, was represented by Frederick Scholtz, Labour Relations Officer. The second respondent, JD Norman, was represented by Rockson Dollie. The dispute was scheduled for arbitration in terms of section 186(2)(a) of the Labour relations Act 66 of 1995 as amended (“the LRA”) as an unfair labour practice regarding appointment and promotion. Issue to be decided.
The arbitration proceeding concerned the alleged unfair labour practice by the respondent as it relates to the unlawful promotion/appointment of the second respondent to the advertised position of Deputy Principal according to the vacancy bulletin number 3 of 2024, at post number 2475 at Dennemere Primary School. The successful candidate, JD Norman, was joined as second respondent to the dispute. The applicant applied for the vacant post but was not shortlisted. According to the applicant he lodged a formal dispute regarding an alleged unfair labour practice pertaining to promotion.
I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) by not shortlisting and/or appointing the applicant in terms of Section 186 (2)(a) of the LRA as:
a. Whether the applicant must be appointed.
b. Whether the current incumbent’s appointment should be set aside, and or
c. If the process should be declared null and void and readvertised.
In terms of appropriate relief if I find that the first respondent committed an ULP:
d. Whether the appointment of the second respondent must be set aside and/or the applicant receives compensation as he suffered financial and/or other prejudice.
e. Alternatively, the process to be redone by the Education Department of Western Cape and SGB. Background to the Dispute
The applicant has been appointed as a Departmental Head at Dennemere Primary School Hostel in Blackheath, Western Cape with effect from 01 April 2022 on a permanent basis. He is currently in a post level 2 position with gross oncome of R41 299-50 and receiving a net salary after deductions of R24 593-92 as from October 2025. The applicant applied for the vacant post of Deputy Principal that was advertised but he was not shortlisted. Ms JD Norman was nominated by the School Governing Body (SGB) as the most suitable candidate for appointment. The WCED confirmed the appointment of Ms Norman in the advertised position. On 26 June 2025, the applicant lodged a formal dispute regarding an alleged unfair labour practice pertaining to promotion.
The dispute arose on 24 June 2025 and was referred to the ELRC and set down for conciliation on 14 August 2025, where a ruling was issued by the Commissioner. The arbitration hearing was set down for 21 October 2025, and all parties were present. The pre-arbitration minutes was discussed and finally agreed on after 10:00. After the applicant testified and was cross examined by both representatives of the first and second respondents the arbitration process was postponed as a part heard arbitration because the witnesses of the first respondent must still testify as well as the second respondent. It was then set down for 28 January 2026.
The parties did present opening statements and the representatives of the first and second respondent, and the representative of the applicant presented written closing statements on 06 February 2026 as agreed on 28 January 2026. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered. Survey of evidence and argument Documentary evidence.
Both parties submitted bundles of documents. The bundle of the applicant was marked as “A” pages 1-48 and the bundle of the respondents as “R” pages 1-87. All parties did not dispute the authenticity of the content of the bundles. On 21 October 2025 the applicant added 30 pages handwritten notes, and it was marked as “A2”. The respondent added 8 pages, and it was marked as “R2”. The transcript was explained by Melani Thorne and indicated Business Finances deals with budgets and financial calculations and not called Mathematics in the business environment.
Applicant’s evidence and arguments
The applicant, Jayson Joos, Departmental Head, after having been sworn in, testified as follows:
He is employed in the position as a Departmental Head at Dennemere Primary School for 15 years and he acted in the position since 2021 and appointed since 01 April 2022. His highest education qualifications are a BA Honours Degree obtained at the University of the Western Cape with major subjects as management, business finance, marketing, and sport psychology. The major subject that he taught as HOD are mathematics, English home language, social science, and life skills. The advertisement for the position of Deputy Principal appears on page 25 of bundle “R” and it states: “Grades 4 -7 – Intermediate and/or Senio Phase with subjects intermediate and/or senior phase-technology, Mathematics, and social sciences. The recommendations are relevant experience, utilising technology/ICT in the classroom and experience in a promotion post (acting or permanently). Other requirements are competent in budgeting and fundraising. Willingness to work beyond the normal school hours. The successful candidate must be suitably qualified to teach at least two of the abovementioned subjects.”
The applicant agreed that he was and is suitably qualified for the position of Deputy Principal as his majors are social science and life skills and he had 15 years mathematics experience at different schools. The successful candidate only teaches Afrikaans and Life Orientation. The qualifications of Ms Norman appear on pages 57 to 58 of bundle “R”. He was stopped to further give personal details of the successful candidate although it appears in the bundle, but she can herself testify about her personal information. The applicant stated that he believes he should be shortlisted as he met all the requirements of the position and he was excluded without any justifiable reason, and he put in a grievance in December 2024.
He stated that on page 1 appears the email regarding the irregular appointment of the Deputy Principal position on 24 June 2025 to Julia Du Preez and Abigail Blankner. On page 9 of bundle “A”, the applicant read the email of 12 December 2024 to John Williams and Julia du Preez into the record. It states: “I was disheartened to find out that I was not selected for the interview for the position of Deputy Principal at Dennemere Primary School, especially since my skills and experience made me a strong candidate. It is concerning to me that I only found out a week later from Mr J Johnson, that interviews were held. This proves to me that the information was deliberately withheld from me. If I did not ask Mr Johnson, I would not have known that interviews were held and conducted. This warrants for a dispute into the process.” The ground for the grievance appears on page 10 and the actual grievance submitted on pages 11 to 15. The applicant did not receive any written response or email on his grievance.
The applicant read the one sentence emails on pages 6,7 and 8 into the record. The email correspondence was from 13 December 2024, and it happened after he put in a grievance, and he was waiting for a response. Page 12 of bundle “A”, details of the grievance was read as follow: “I am submitting this grievance report regarding my non-shortlisting for the Deputy Principal position at Dennemere Primary School. I strongly believe that I meet and exceed all the required criteria for the role, and I am aggrieved that I was deliberately excluded from the interview process. Furthermore, I find the decision unjustifiable, as no valid reason have been provided by the School Governing Body to support their action. I kindly request the following actions to address my grievance: (1) A detailed explanation from the SGB regarding the reasons for my exclusion from the shortlisting process. (2) A review of the shortlisting process to ensure transparency, fairness, and compliance with policy guidelines. (3) If found that due process was not followed, I request an opportunity to be considered for the position.” The school was aware of the grievance as in the 05 May 2025 meeting of the SMT, he was made aware of it as can be seen on page 5. He was the secretary of the SMT since 2021, and he took the minutes. The position of Deputy Principal could not be filled right now and three (3) HOD’s will act and after June 2025 feedback will be given by the three (3) HOD’s.
The applicant stated that he was not shortlisted as the Panel was concerned about his qualifications and experience and could not aligned it with the requirements of the position. His qualifications were not fully considered, and his experience met the criteria adequately and he was supposed to be shortlisted and interviewed for the position. He stated that he has better qualification and experience than the successful candidate as second respondent. He taught mathematics at previous schools as well and he has all the required qualifications needed. He was teaching all the subjects that is required in the advertisement. He was further involved in a workshop that spelled out leadership. He spends time after hours and on weekends he took school children on camps and/or trips. He has 27 years’ experience in teaching. The selection committee was unfair and inconsistent as the decision was not bases on gender equity of the school as well as his years of experience was ignored.
The applicant stated that he was not invited to the interviews as he was not shortlisted and he received a score of zero as can be seen on page 37 of bundle “R” as he did not meet the criteria. He stated that it was not fair to give other 68 whilst he received zero as he also met the minimum criteria. He further stated that it was inconsistent applied regarding qualifications and experience as the information on his CV was overlooked based on the criteria in the advertisement and the process was unfair. He participated in subjects as there was a mathematics meeting which are minute in the mathematics committee. On page 34 of “A” is the timetable of Grade 7B and on page 35 minutes of the mathematics meeting in 2022. The educators involved himself and eight others. The successful candidate’s name is not there as she never teaches mathematics and neither any technological subjects in 2022.
On page 37 is the minutes of the mathematics meeting on 24 December 2022 and on page 39 receipt of the inventory list for life skills and the signature at the bottom is from the applicant. On page 40 is email and timetable for 2025 and page 41 represents the broad-based timetable in the intermediate phase. Page 42 is a breakdown of the teachers’ timetable, and page 44 indicated what teachers will teach in 2025. The applicant stated that his application was not sufficiently considered, and expectations were created if he looks at the advertisement and a suitable qualified person would be able to meet the shortlisting criteria. His expectation was enhanced when Ms Norman was shortlisted. The process was not transparent and fair, and he has no automatic right to a promotion, but he has a right to be subjected to a fair process.
Under cross-examination by the representative of the first respondent, he confirmed the subjects to the intermediate phase in the advertisement as technology, social science, and mathematics on page 25 of bundle “R”. The advert states that the successful candidate must be suitable qualified. The applicant stated that the three (3) subjects are described by the WCED to be taught in the intermediate and senior phase. The applicant applied online for the post and according to him he was suitably qualified to teach at least two (2) of the abovementioned subjects. His qualifications were again looked at as on page 75 of “R” as well as his major subjects in his diploma as human movement studies, social science, sport, and recreation etc. The meaning of social science are history, sport and recreation means to be an event coordinator and to plan events. The representative of the respondent stated that she does not see mathematics as part of his subjects in his BA Hons degree, and he stated that the mathematics was completed as a six-month course. It was stated that the applicant was doing planning and project management, and he presented a variety of subjects. The history was proved that he was capable to present history at previous schools and that he was suitable to teach two of the subjects namely social science and technology.
It was put to the applicant that the sole reason he was not shortlisted was that he did not meet the criteria as he was not qualified to teach two of the three (3) subjects. He responded that all the candidates did not meet the criteria as the second respondent never taught mathematics. He stated technology must go into the event and it is part of project management and event planning. He agreed that technology is a subject on its own. It was put to the applicant that the word technology did not form part of his qualifications, and he stated that he is qualified in his employment history. Under setting of criteria, it states under 5.2 please see attached the primary and secondary criteria that appears on page 39 of bundle “R”. Page 39 stated under primary criteria M plus 3 teaching qualification, five-year teaching experience and the applicant must be qualified to teach at least two of the mentioned subjects: Technology, Mathematics, Social Science. The language of instruction is English and Afrikaans. The applicant again said that he meets the criteria and that is why he applied for the post as he teaching 15 years mathematics.
It is further stated on page 31 in 5.4 that the committee unanimously agreed that each CV must be reviewed and scored by two committee members be duly dated and signed and in 5.7 is states that it was agreed that a minimum score of 60% must be obtained by an applicant during the shortlisting process. It also states in 5.6 if the scores of the two committee members differ by more than 10%, the relevant CV will be reviewed by a moderator. In point 5.8 it was further agreed that the to five (5) applicants who meet the minimum of 60% will be invited for an interview. It also states on page 32 that the CV’s of the applicants were printed and verified against the list to ensure that a CV was printed for each applicant and the applicant’s name appears as no 11 and he did not meet the primary criteria.
It was put to the applicant that he was not considered as he was given a score of zero and he said he was suitable as he was one of the longer serving males and he met at least two of the criteria. He again confirmed that he did not receive any outcome on his grievance he lodged in December 2024, and he was advised on 25 June 2025 to lodge a formal dispute after he enquired about his grievance. He was not given a fair opportunity to raise his viewpoint internally and the matter could have been resolved by given him a fair opportunity to be in the interview. It was stated that the minutes are available of the shortlisting and interview process as it is part of bundle “R” to show the process was properly followed. The applicant stated that no person who was not interviewed could have seen the minutes of the process. Point 4.4 was read on page 87 of bundle “R” and the minutes were signed on 06 August 2024.
Under cross-examination by the representative of the second respondent the applicant confirmed that 2010 was his appointment date at the school but he was only promoted to Head of Department in April 2022. It was put to the applicant that on page 25 (advertisement) that the applicant is not qualified to teach technology, and he agreed with the explanation, but he did qualify. He said that skills you have acquired and experience you built up over the years and a formal qualification you received from a tertiary institution. It was put to the applicant that he is not qualified to teach technology nor mathematics and he responded that the SGB must then remove his 15 years’ experience. On page 5 of bundle “A” the applicant confirmed that he was the secretary of the minutes, and he signed the minutes of the meeting. He confirmed that the minute of this meeting is correct as he did it.
The applicant said he was professionally qualified since 2022, and he thought it fit to apply for the vacant post as he met two of the primary criteria. He was referred too page 21 of bundle “A”, and he was told that his role as HOD is to make sure the subjects are running smoothly and effectively communicated and he agreed. The applicant was not aware whether other males were shortlisted for the vacant post. He was told that gender equality did not apply in this appointment. The applicant admitted that he oversees Life Skills, and his role is that he is the head of the subject life skills and set up meetings and coordinating it himself. He agreed that he was only a member of the SMT, but he said that he was part of the assessment committee.
Under re-examination it was put to the applicant in terms of Circular 36 of 2022 that a person who is not professionally qualified should not be appointed. The applicant said he understands professionally qualified that you need a necessary degree to teach and a Hons Degree to be appointed as a Deputy Principal. In looking back a candidate needed the necessary skills and experience to meet the criteria, and he has that and that was the reason he applied. His CV is on page 75, and it was again discussed. He started as an educator, and he needed experience, and he taught mathematics and social sciences for many years. As can be seen on page 76 of bundle “R” he taught grades 4-7 at Blackheath from 2003 to 2008 in mathematics, natural science and technology and social sciences. He concluded that he met all the requirements as advertised and the minutes on bundle A pages 37 to 38 is old minutes. Respondent’s evidence and argument
The first respondent called two (2) witnesses to testify.
The first witness, Wendy Leukes, Principal at Dennemere Primary School, after having
been sworn in, testified as follows:
She stated that the document on page 25 of bundle “R” is part of the advert of the position of Deputy Principal and it was compiled by the SGB and the Senior Management Team. The Deputy Principal is responsible to teach grades 4-7-Intermediate and/or Senior Phase, where intermediate phase is grade 4-6 and senior phase is on grade 7. The structure at this primary school is the Principal and two Deputy Principals of which one is on the intermediate and senior phase and the other one on the foundation phase. The rest of the positions are on Departmental and Level 1 posts. The Deputy Principal position became vacant in April 2025 with the retirement of Mrs Barrel Blaaw. The subjects on page 25 are Intermediate and/or Senior Phase-Technology, Mathematics and Social Sciences. The need of the school was that the successful candidate must teach at least two of the abovementioned subjects and be suitably qualified.
The advertisement was necessary as the position forms part of the management team and the previous person in the position was promoted to another school and the subjects became the needs of the school. The applicant teaches the subjects at primary schools but have not the qualifications for it. The needs of the school were these three (3) subjects as Mrs Blaaw returned and two other educators already left. On page 27 of bundle “R” point 4.2.1 to 4.2.4 was read and it states: “The drafted shortlisting criteria will be discussed for acceptance on the day of the shortlisting session to maintain confidentiality around the process. After the shortlisting criteria is accepted by the Committee, the list of applicants will be presented so that members who have a conflict of interest will declare this and recuse themselves. The required conflict of interest/confidentiality documentation will be signed and dated by all stakeholders. CV’s will then be printed, and committee members will measure the information in the CV against the set criteria to determine a shortlist”.
On page 26 is the minutes of the SGB meeting: Planning and constituting an interview committee for recruitment and selection; Post No 2475 of vacancy list 3 of 2024. The minutes is dated 10 October 2024 and the names of attendances like parents, educators and non-educators appear on the minutes. The names of the interview committee appear on page 27 of bundle “R”, and it was signed by the Chairperson of the SGB and the Secretary of the SGB. The shortlisting meeting was on 02 November 2024 as can be seen on page 30 and it was attended by the members of the interview committee and they were Chairperson-Mrs Williams (Parent Member), Ms Leukes (Principal), Mrs Bizaare (Parent Member), Mr Johnson (Parent Member), Ms Witlouw (Educator Member), Mrs Lakay (Educator Member) and Departmental Representative (Resource Person) and Mrs Julies (Principal of RR Franks Primary School).
The setting up of criteria was read on page 31 in point 5 and it states: “The draft criteria for Post Number 2475 was presented and duly explained to the Committee. The Committee unanimously agreed that each CV must be reviewed and scored by two Committee members and must be duly dated and signed. In the event that the scores at the two Committee members differ more than 10%, the relevant CV will be reviewed by a Moderator. The Committee agreed to appoint Mrs Williams (Chairperson) as the moderator. It was agreed that a minimum score of 60% must be obtained by an applicant during the shortlisting process. It was further agreed that the top 5 applicants who meet the minimum of 60% will be invited for an interview”. The Committee received 29 applications for the post and on page 33 and 34 of bundle “R” appear the shortlisting candidates of which the successful applicant was one and the applicant was not on the shortlisting list. The position was open to all who wished to apply including the applicant and he did.
On page 37 of bundle “R” appears the total score of the applicant as 0 as he did not meet the primary criteria regarding qualifications and teaching of subjects according to his CV. As he did not meet the primary criteria his CV was not scored. On page 74 appears the CV of the applicant that was scrutinised by Committee members. The Committee looked firstly at his academic qualifications on page 75. His Higher Diploma in Education at the University of the Western Cape indicated intermediate and Senior Phase. He also has a BA Hons at the University of the Western Cape on the senior and FET Phase and not included one of the subjects required for social science. She was asked whether Business Science forms part of Mathematics and she said not at primary school and she has no knowledge of senior and FET phases. She agreed that the applicant teaches Mathematics for many years and the Committee only used what was in front of them and it is just social science. The applicant can teach Mathematics but has no qualifications in Mathematics according to his CV. There is also no proof of Technology in the CV of the applicant.
The witness stated that the SGB members used the criteria on page 25 for shortlisting to determine the shortlisting applicants, but the applicant said the compiled criteria and process of the SGB was unfair and she said the applicant in the CV did not meet the primary criteria and his CV was not scored. The successful candidate CV appears on pages 57 and 58 and she met the requirements of the primary criteria in her CV and could teach at least two of the required subjects. Her previous post was a Departmental Head, and she complied to the criteria and qualified to teach the required subjects. The successful candidate as can be seen on page 13 of bundle “R” was appointed on 01 July 2025 as Deputy Principal at the school with duties over three grades-grade 4- Technical and Natural Sciences and continued with grade 5 History and grade 7 -Afrikaans. She is also used in Technology and Social Sciences. She is not teaching Mathematics as other level 1 educators teach it and the witness manage the subject. The successful candidate normal managed all the subjects in the Intermediate and Senior Phase.
The witness stated that the applicant is fit in managing the life skills and creative arts and he is at the school for more than 15 years. The Management of the School is not looking at the person but at the need at the school and applicants were shortlisted according to the primary criteria at the school. The Resource Person was Mrs Blanche Julies the Principal at another school and on page 16 of bundle “R” appears the appointment of the Departmental Representative for the process. The findings of Mrs Julies and the WCED can be seen in the report on pages 14 to 15 of bundle “R”. The process was followed as the criteria required and two committee members scored each CV of the applicants.
Under cross-examination she confirmed that she agreed with the formal qualifications of the applicant as given in his presented CV. The applicant was able to teach Social Sciences and Mathematics but not Technology. She said that she does not think the applicant would apply for the vacant position if he was not competent. The recommendation regarding the applicant was that Joos did not qualify in terms of the criteria in the advert but agreed that he has fifteen (15) years of experience. On page 4 of bundle “A” the email was sent by the applicant to the Circuit Manager and the witness was copied into the email and it was part of a grievance. In the minutes of the SMT meeting held on 05 May 2025 in part 2 on page 5 it states under the Deputy Principal Post that: 1. There has been a grievance lodged on the post hence the post cannot be filled right now; 2. Mrs Leukes requested that the Deputy work responsibilities be shared amongst three HOD’s; 3. After June it will be expected of the HOD’s to act in the Deputy role; 4.Educators have been given time until Friday, 09 May 2025 to complete the outstanding CMT’s”.
She however indicated that Head Office sent her an appointment letter for the successful candidate. On page 21 of bundle “A” the heading at the top reads Employment of Education Act and at the bottom of the page Education Labour Relations Council. Under 2.2 Minimum requirements for appointment it states: (a) Educational qualifications (i) In order to qualify for appointment as an educator a person must have at least a recognised three year qualification which must include appropriate training as an educator; (ii) Notwithstanding the requirements set out in paragraph (i), a person appointed to anyone of the following posts is not required to be a qualified educator nut must comply with the relevant requirement for appointment as set out in the document “Evaluation of Qualification to Employment in Education”. The position of the Deputy Principal is a post level 3 post and is not appearing on the list on page 22. It stated on page 25 of “R” under experience a minimum of two to three years and the applicant have fifteen years and it must be considered. The witness stated she disagreed with the statement that the experience of the applicant was ignored. The sifting process started when they received a print copy of the 29 applications plus their CV’s and the Interview Committee did the processes.
The details of the CV of the applicant on pages 74 to 76 were again read by the representative of the applicant especially his employment history and the witness stated that the applicant is not required to teach all the subjects on the list but must meet the primary requirement of at least two of the subjects in his qualifications. She stated that the applicant taught Life Orientation and Mathematics for 15 years at different schools but there is no specialisation and he could have teach subjects with no formal qualification. The applicant is not teaching Mathematics this year in 2025 as there was disciplinary action against him for Mathematics. He received a warning and the subject was taken away from him. She confirmed that the primary criteria were looked at, and it states five (5) years teaching experience and there must be at least two (2) of the required subjects in his qualifications. When applicants met the primary criteria their CV/s were further scored and then 60 % is the cutoff point to qualify for interviewing. It was put to the witness why she allowed the applicant to teach the subjects for 15 years and she responded that in a Primary School you can teach subjects that you do not qualify for.
The witness stated that the applicant’s present position is that he is a Grade 5 Educator and Departmental Head and the content differ from post to post. She was referred to page 35 of bundle “A” regarding the minutes of the mathematics meeting in April 2024, and the applicant was handling Grade 5 with Mrs Leukes and managed Life Skills. This was agreed to by the witness.
Under re-examination she confirmed that on page 39 of bundle “R” it is indicated that the CV of applicants were scrutinised against the agreed primary criteria. In the case of the applicant, he scored zero as he did not meet all the primary criteria and it is one if the criteria that the mentioned subjects must be part of the qualification.
The second respondent, Blance Julies, former Principal at RR Franks Primary School, after
having been sworn in, testified as follows:
The second respondent stated that it is her second year as Principal after she was acting for a year as Principal and she had experience in promotional posts at previous schools for Departmental Head and Deputy Principal as Resource Person. On page 16 of bundle “R” John Lional Williams the Circuit Manager issued the letter on 03 November 2024 to Blance Julies as Departmental Representative. In accordance with Resolution 5 of 1998 and minute 7 of 2014, the said representative is duly authorised to execute the list of eleven (11) duties as it appears on page 16. In her role as Resource Person, she represented the Head of Education and to see that the correct processes and procedures was adhered to, plus observation without interfering with the process. She spoken to Mrs Leukes and most of the SGB members and they were all trained in the recruitment and selection processes.
Page 25 of bundle “R” represents the advertisement of the Deputy Principal position. Her role in the decision of the criteria was that it was put down before her, and it was accepted according to the advertisement. She stated that processes were followed by the SGB according to the advertisement and requirements and consensus was reached in the SGB, and it was fair. On pages 14 to 15 of bundle “R”, it represents the representative report in support of recruitment and selection process. The document was signed by herself and the Circuit Manager. JL Williams on 09 May 2025. It declares the SGB has acted in terms of the provisions of Section 3 (b) (i) to (v) on page 14. According to page 15 all processes were followed according to the criteria, and she considered that all the processes were followed before she signed the report. Her role after the criteria for shortlisting was laid out was to observe and to ensure the criteria fit the post. The SGB members were well trained, and they knew what they were doing and she gave input on issues they were unsure of. While the Committee members were scoring the CVs there were candidates who did not meet the primary criteria, and she sat with the relevant CV and checked it. The SGB did all the scoring. Only five (5) candidates were shortlisted, and they went for interviews and the names of the five (5) candidates appear on page 33 to 34 of bundle “R”.
She did nothing about the shortlisting candidates and they were invited for interviews. On page 25 of bundle “R” it states under other that; “Competent in budgeting and fundraising. Willing to work beyond the normal school hours. The successful candidate must be suitably qualified to teach at least two of the abovementioned subjects”. She stated that at a primary school several educators teach in a subject they are not qualified in. Her view is that the candidate appointed must be suitably qualified according to the qualifications and the applicant disagreed with this contention. On page 75 of bundle “R” in the CV of the applicant and after scoring he was not shortlisted as his qualifications indicated that he has no formal qualifications and at least two subjects a mentioned must be part of his subjects in his formal educational qualifications. She is however not familiar with business finance. On page 39 of bundle “R” the primary criterion for the post is spelled out and the applicant is not qualified to teach Technology and Mathematics and only Social Sciences.
Under cross-examination it was said that Williams and the Director signed the document as well as the witness on page 14 of bundle “A”. She confirmed that she discussed with the SGB and they introduced the Committee and all of them were trained in Recruitment and Selection processes and procedures. She did not refer them to the PAM document, and she was referred to pages 21 to 22 of bundle “A”. The minimum requirements of filling a post were again read regarding qualifications and experience and the Deputy Principal is on Level 3. The representative stated that the applicant has actual and appropriate experience and that was agreed to but not qualified in the correct subjects as mentioned. She agreed that the applicant have 15 years’ experience in Life Orientation and he taught some of the subjects for long years. When she was told that the process was not fair as well as the definitions of suitably qualified is open for interpretation she did not answer.
She confirmed that the applicant has more than five (5) years teaching experience but did not qualify to teach the three (3) subjects. She was further told after 15 years the applicant may teach two of the three subjects namely Mathematics and Social Sciences. She said that she was supposed to advise the Committee differently and the words of suitably qualified in the advertisement was supposed to chosen more carefully.
Under re-examination when she was asked what it means to choose the words more carefully in the advertisement of suitably qualified the witness did not answer, but then said the way of interpretation must be qualified related to qualification and experience. She confirmed the SGB has the authority to draft the advertisement for the vacant post. She confirmed that the document on pages 14 to 15 of bundle “R” was signed on 09 May 2025.
Closing arguments
The representative of the first and second respondents and the representative of the applicant sent written closing arguments by 06 February 2026, as agreed on 28 January 2026 All parties’ submissions and arguments were perused and incorporated in the decisions made in the award. Analysis of evidence and argument
This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Employment of Educators Act 76 of 1998. Secondly, I am also going to refer to the Personnel Administration Measures (PAM) document. Section 36 (4) (a) & (b) of the Act empowers the Head of Department (HOD) to delegate any function conferred on the said head to any person in the employment of the Department and to also authorize such a person to perform the function conferred on the HOD. The power and authority to approve recommendations from the interviewing panels were never delegated. The PAM sets out the procedure to be followed when filling educators’ posts.
Promotion is the process where an employee is evaluated to a position that carries greater authority and greater status than the current position that the employee is employed. Employers are expected to appoint the best, strongest candidate and unless the applicant proves that he was the best of all the candidates who applied for the position, no substantive unfairness has been proved.
It is common cause that the post of Deputy Principal was advertisement and it appears on page 25 of bundle “R” and it states: “Grades 4 -7 – Intermediate and/or Senio Phase with subjects intermediate and/or senior phase-technology, Mathematics, and social sciences. The recommendations are relevant experience, utilising technology/ICT in the classroom and experience in a promotion post (acting or permanently). Other requirements are competent in budgeting and fundraising. Willingness to work beyond the normal school hours. The successful candidate must be suitably qualified to teach at least two of the abovementioned subjects.” The applicant applied for the vacant post but was not shortlisted.
I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) by not shortlisting and/or appointing the applicant in terms of Section 186 (2)(a) of the LRA as:
f. Whether the applicant must be appointed.
g. Whether the current incumbent’s appointment should be set aside, and or
h. If the process should be declared null and void and readvertised.
In terms of appropriate relief if I find that the first respondent committed an ULP:
i. Whether the appointment of the second respondent must be set aside and/or the applicant receives compensation as he suffered financial and/or other prejudice.
j. Alternatively, the process to be redone by the Education Department of Western Cape and SGB.
It is the submission by the representative of the respondent that what is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness towards both the employer and the employee. In the education sector, regard should also be had in the procedure prescribed in PAM, to determine whether a fair procedure was followed in promoting a certain candidate as opposed to another. In the present matter the applicant hinges on the fact that he applied for the Deputy Principal post at Dennemere Primary School and as he has the necessary experience and suitable educational qualifications, the SGB should have shortlisted him for interview purposes.
It is the submission of the first respondent that in support of the claim that an unfair labour practice relating to promotion had been compiled, the applicant during his evidence and cross examination, relied on his experience, by stating that the SGB failed to shortlist him which amounted to unfairness. During cross examination, it was put to the applicant that the notice of the advertisement specifically made mention to all candidates that they must be suitably qualified to teach at least two of the subjects, namely Technology, Mathematics and Social Science. He also testified that he obtained the following educational qualifications: A Higher Diploma in Education with major subjects: Human Movement Studies, Social Sciences and Sport and Creation and a BA Honors Degree with Major subjects: Business management, Business Finance, Marketing and Sports Psychology.
The applicant is also of the view that Mathematics form part of Business Finance which enables him to teach the subject at this school. After studying the contents of the academic transcript, it clearly stated that he majored in Business Finance, but nothing was mentioned about the completion of Mathematics. He is also prepared to teach a variety of subjects like Technology. It was put to him that the reason as why he did not meet the shortlisting criteria was because he did not meet the primary criteria. The applicant also conceded that he does not qualify to teach Technology. Throughout the applicant’s evidence he failed to provide any sort of reason why he felt he should be appointed other than that he was the longest serving educator at the school and has been appointed as a departmental head with effect from 01 April 2022.
The PAM states that an interview committee must be comprised of members of the school governing body, union observers and one department representative as an observer and resource person. The departmental representative must be the eyes and ears of the employer, who cannot be present at the interviews so that the employer knows about any irregularities that occur during the process. If the resource person does his or her job well then there should be no reason for the union observers to raise objections because their employer representative would ensure that there is no procedural unfair conduct. Nowhere does the role of the resource person indicate that she has the power to stop a process other than ensuring compliance with legislation and prescriptions.
The WCED called Ms. W Leukes, the Principal of the school who testified that the deputy principal post became vacant because of the following reasons: (1) Ms. Blaauw, the former deputy principal, who retired with effect from 01 April 2025, was responsible for the Intermediate Phase with the following subjects: Technology, Mathematic and Social Sciences. (2) Mr. Wagner, who was in charge of the subject Technology, obtained a promotion post at another school, and (3) Ms. Prinsloo who left the school. It essentially means that the school needs a deputy principal who is qualified to teach at least two of the listed subjects above. The SGB and School Management Team decided that the vacant deputy principal post must be advertised. The advertisement appears in the documentation of the respondent and on page 84 of the applicant’s bundle.
She also stated that the meaning of the word “suitably qualified” is that the educator must have the qualifications to manage the subject. After the candidates were shortlisted, it meant that they met the primary and secondary criteria as well as receiving a score of at least 60% during shortlisting. However, she stated that after the applicant’s CV and academic qualifications were considered by the shortlisting committee it was found that he did not meet the primary requirements. However, she testified further that the subject Business Finance has no relevance to primary schools. She further provided evidence by stating that although the applicant is teaching Mathematics, he is not suitably qualified to teach this stated subject. Her experience with the WCED Recruitment and Selection office is that the school must ensure the uploading of all related documentation pertaining to the recruitment and selection process. If the said office found that none of the nominated candidates does not adhere to the shortlisting criteria, it will result that the vacant post will not be filled, and the related documentation will be returned to the school.
Ms. Leukes indicated to her understanding of the meaning of “suitably qualified” is that a person must have a college and/or university qualification. Ms Leukes also stated that the applicant did not meet the primary criteria which according to the WCED bundle of evidence at page 39 to 44, consists of the following academic qualifications, teaching experience in South Africa, and subjects regarding academic qualifications. It states a M3 qualification and teaching experience in SA of five years teaching experience, and regarding subjects must be qualified to teach at least two of the mentioned subjects: Technology Mathematics and Social Science and in language of instruction English and Afrikaans. She disagrees with the contention that the applicant’s experience should have been considered for shortlisting.
The WCED called a second witness, Ms. B Julies, who acted as the WCED representative in the recruitment and selection process. As seen on page 16 of the WCED bundle, Ms. Julies received an appointment letter on 01 November 2025 as the departmental representative. On pages 14 to 15 of the WCED bundle of evidence is her report in support of the recruitment and selection process with regards to the filling of the deputy principal post number 2475 at Dennemere Primary School. She signed off the same report on 9 May 2025 as all processes were followed by the SGB and her role as departmental representative was to represent the Head of Education to ensure that the correct procedure be adhered to by the SGB. She had only observation status which means she cannot interfere in the manner how the SGB decides on the shortlisting criteria.
She also stated that the candidate must be suitably qualified to teach at least two of the above subjects. She is not familiar as to whether the subject Mathematics is part of Business Finance. Her understanding of teaching Mathematics for grades 4 to 7 is that this stated subject has nothing to do with Business Finance. She also stated that the SGB did not score the applicant’s CV as he did not meet the primary criteria. Under cross-examination she stated the SGB decided to go strictly with the wording of the advertisement. This therefore explains why there were candidates who were not considered for short listing, as they did not meet the requirements as stated in the primary criteria. She further stated that her understanding of “suitably qualified” is that a person must be qualified to teach the subject. However, it was not her role to question the SGB decision for deciding on the criteria for placing such request in a departmental vacancy bulletin. The SGB has the final authority to draft an advertisement for a vacant post.
In deciding whether conduct relating to a promotion was unfair, an arbitrator has a very limited function and is in a similar position to that of an adjudicator called upon to review decision made by a functionary or a body vested with a wide statutory discretion. Therefore in order to show unfairness relating to promotion, an employee needs to show that the employer in not appointing him or her and appointing another candidate, acted in a manner which would ordinarily allow a court of law to interfere with the decision of a functionary by proving for example that the employer had acted irrationally, or arbitrary was actuated by bias, malice or fraud, failed to apply its mind or discriminated.
The relief that the applicant asked for is that the appointment be set aside. Arbitrators cannot reward applicants in promotional disputes with appointments, merely because there was an irregularity in the process. Appointments are made on merit and not as punishment to the respondent for unfair conduct. Our courts have held that an applicant in a promotional dispute also needs to establish a causal connection between irregularity or unfairness and failure to promote. To do that he needs to show that, but for irregularity or unfairness, he would have been appointed to the post, which in turn means that he must prove that he was the best of all the candidates who applied for the post. If he is unable to prove this, he cannot prove substantively unfairness and cannot be awarded any substantive relief such as appointment to the post. This strict test, however, is only applicable in cases where the applicant claims appointment to the post or other substantive relief. Where the causal link is not proved, and the applicant cannot prove that he was the best candidate, compensation for procedural unfairness can still be awarded.
In conclusion the representative of the first respondent submitted that the fact remains that the HOD and\or delegated authority exercise his discretion when he appointed Ms. JD Norman as the new deputy principal with effect from 01 July 2025 at Dennemere Primary School. The Department is of the view that the applicant failed to discharge the onus that an unfair labor practice was committed.
It is the submission of the representative of the second respondent that this letter serves as formal confirmation that the second respondent JD Norman concurs with and adopts the closing arguments submitted by the 1st respondent, the Western Cape Education Department (WCED). As the eyes and ears of the employer, Departmental Representative ensures that the experienced SGB implemented the correct prescribed procedures and that the criteria remain aligned with the requirements of the post. The decision and the appointment of the second respondent was lawful as the promotion process was fair and the applicant’s exclusion was a rational consequence of his failure to meet the primary criteria. In promotion disputes, the arbitrator exercises deference to employers’ discretion and management prerogative, focusing not on whether the best candidate was selected but whether the ultimate decision was unreasonable, rational and operationally justifiable. This discretion must be respected by the arbitrator unless there are clear evidence or bad faith or improper motives. A departmental representative monitors compliance with legislators’ limitations, policies and procedures. However, the SGB holds the final authority to establish shortlisting criteria, draft advertisements and ensure that the process and decision remain strictly aligned with the school’s needs.
While there is no general right to promotion, employees do possess the right to fair consideration for a vacant post. Consideration is also given in terms of the best interest of the child and the public interest because they also serve as their justification for selecting the suitable qualified candidate. Consequently, appointing a candidate who meets the criteria over one who lacks the necessary subject qualifications is a rational decision. The applicant receives such consideration, yet he was not selected because he failed to meet the primary criteria required by the SGB for the post.
It is the testimony of the applicant with reference to his CV that he has been teaching the subjects during the 15 years of serving at the current school, Dennemere Primary School and prior to that at his previous schools where he was teaching. He also testified that he became aware that he was not considered for the post after weeks from when interviews took place. He was informed by one of the school governing body members, Mr. J Johnson, after the applicant inquired from him about how far the process was.
The applicant immediately voiced his objection via a formal complaint on 12 December 2024 where he expressed his concern and disappointment. He received immediate responses and he provided all information requested. In an e-mail from Ms. Julia Du Preez prior to various recipients of the first respondent, he was led to believe that the post would be put on a moratorium. He received no formal response to his complaint. In his e-mail dated 24 June 2025, more than six (6) months later with no response to his emails in December 2024 he sets out his further disappointment and on instruction from Ms. Du Preez and Mrs. Blankner he then put forward a formal dispute with the ELRC. The applicant further pointed out to page 5 of the applicant’s evidence bundle minutes of an SMT meeting where his understanding was correct that the post was placed under moratorium and it therefore could not be filled. This was confirmed by the principal, Ms. W Leukes, during cross examination by the applicant’s legal representative. The applicant also referred to page 32 of the applicant’s bundle, that he was the coordinator for Life skills/Life orientation and Ms. Norman, the second respondent, for languages.
The applicant state with reference to pages 35 to 38 of his bundles that he also formed part of the mathematics theme. JD Norman has never taught Mathematics since she started teaching at the Dennemere Primary School. This was her first school since she started her teaching profession. She only taught languages and she confirmed this according to the applicant’s testimony on her application form. During cross examination the applicant continued stating that he believes he was suitably qualified and that he should have been shortlisted and granted the opportunity to be interviewed. He also said there is possibility that he would have done well. The applicant with reference to page 22 of the first respondent’s bundle stated that Ms. Norman, if the same criteria were applied as it was to him, should not have been shortlisted. He indicated then it would be incorrect and not true to say she complied with minimum requirements. When asked about his scoring being zero, he could not answer that question other than stating he does not agree with it as he was suitably qualified and made the requirements as per their advertisements.
It is submitted by the representative of the applicant that the moratorium was placed on finalization the process because of the applicant’s grievance on the same issue arisen during his dispute in December 2024. Despite the existence and/or instruction thereof the first respondent ignored the administrative freeze and proceeded to fill the post. This action is not only procedurally unfair, but it shows either bad faith or negligence acting in haste to fill the post without the necessary due diligence.
It is further submitted by the representative of the applicant that it is the applicant’s contention that finalization and filling a post during a moratorium or grievance related to this post rendered the entire recruitment process void and irrational. In fact, if ignoring this grievance and moratorium as a result thereof. exacerbates the unfairness of the promotion process itself, demonstrating bad faith and\or gross negligence. Thus denied the applicant a fair opportunity to compete. The commissioner must decide whether the applicant was subjected to a fair recruitment and selection process in the filling of the post of Deputy principal at Dennemere Primary School. The representative also look at the definition of suitably qualified in terms of the section 20(3) of the Employment Equity Act and it states (3) For purposes of this Act a person may be suitably qualified for a job as a result of any one of, or combination of that person’s – (a) formal qualifications; (b) prior learning; (c) relevant experience; or (d) capacity to acquire, within a reasonable time the ability to do the job. The first respondent was grossly reckless and negligent in not addressing the concerns raised by the applicant. Their actions have been the reason that this matter became litigious. There has to date not been a response from the first respondent to the outcome of this grievance. In fact, it was the employees of the first respondent in their respective roles, Ms. du Preez and Ms. Blankner, who told the applicant to challenge this at this forum. This does not make the appointment of the second respondent moot because it is the applicant’s contention that it cannot be proven that JD Norman was in fact the best candidate for the position as Deputy Principal. It shows that she was appointed under a motivation that lacked integrity and truth.
It is further submitted by the representative of the applicant that the respondent has hardly refuted the applicants’ case, if any, during the proceedings. As can be observed from the arbitration proceedings, it would be plausible to presume that respondent’s witnesses or to a fair extent premised on mere technicalities on evidence such as the fact that the applicant was not shortlisted because he was not suitably qualified in teaching two of the three subjects. It is highly irrational and unreasonable to decide on what you know one of the applicants compared to what was submitted in the application. This puts the applicant at an unfair advantage. The first respondent should be able to articulate justifiable reasons why the applicant did not meet the minimum requirements and, in this case, there is no compelling reason to justify such a decision. It had been suggested in case law that the commissioner’s function is not to ensure that employers choose the best or most worthy candidate for promotion, but to ensure that when selecting employees for promotion, employers do not act unfairly towards candidates.
Therefore, according to the representative of the applicant, the applicant has shown that no justifiable reasons were given and that the first respondent has no reason for not shortlisting the applicant ensuring a fair process to compete in. Neither can the process show that the second respondent is in fact the best candidate, especially in the light that she showed/declared on her see that she is the best candidate. The reason that the applicant did not meet the minimum requirements is not true and therefore not credible and/or rational. Either way the processes followed were not fair and were biased. An employee brings a claim under section 186(2) of the LRA inclusive of the fact of matter, merely needs to show that disputed practice exists in the workplace and that entitlement is rooted in legislation, judicial ruling, privilege, guidelines\policy and/or process contract and that was unfairly denied. The applicant has discharged his onus on a balance of probabilities in proving that the first respondent acted in an unfair, arbitrary irrational and capricious manner. They have failed to apply the advertisement.
In Sun International Management (Pty) Ltd v CCMA and others (JR939/14) [2016] ZALCJHB 433 it was held that a finding that a failure to promote was unfair must be a rational one i.e., it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the employee’s qualifications and/or suitability for the position in question, against that of other candidates. 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. The employee must also show that the breach of the procedure had unfairly prejudiced the employee. The employee must not merely show that that he was the suitable candidate for consideration, but that he was the best candidate. I find that in this case in question the applicant could not show that he was the best suitable candidate for consideration, and he also could not proof that he was the best candidate for the position as Deputy Principal according to the results and recommendation by the SGB.
In Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 All SA 135 (SCA) the judge ruled that the Employment of Educators Act requires the governing body to make a recommendation to the provincial HOD. No appointment, promotion, or transfer to any post on the educator establishment of a public school, may be made without the recommendation of the governing body of the public school. A recommendation by a school governing body is an essential prerequisite for the appointment of an educator in a departmental position; without such a recommendation the HOD acts ultra vires and unlawful.
After making an analysis of the process, I find that the SGB is entrusted with the duty of nominating a suitable person for a post, but the final decision is still that of the Department (HOD) to appoint. In this case the Department appointed the second respondent as the suitable candidate for appointment. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement. The arbitration of a promotion dispute entails a review of the employer’s decision. In applying the Sidomo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.
Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the recruitment and selection process. There is no general right to promotion. What employees do have, is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not shortlisted. The decision to promote falls within the managerial prerogative of the WCED.
When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then for the employee to prove an unfair labour practice relating to promotion, he should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post. Further no declaration was made and minute as testified by the witness of the first respondent
I find that the procedure followed by the Panel constituted by the SGB was not appropriate and the applicant was prejudiced as he was not shortlisted and not interviewed and a grievance in December 2026, was not handled by the first respondent. There was proof of procedural conduct that denied him a fair opportunity to compete in the post as Deputy Principal.
In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
I find that the shortlisting and interview and ratification process was not flawed. The applicant requests for the process to be repeated and this cannot be done as the correct process was followed to appoint a successful candidate. It appears the total score of the applicant was 0 as he did not meet the primary criteria regarding qualifications and teaching of subjects according to his CV. If he is unable to prove this, he cannot prove substantive unfairness and cannot be awarded any substantive relief that the post must be readvertised. This strict test, however, is only applicable in cases where the applicant claims appointment to the post or other substantive relief.
To show unfairness relating to promotion, an employee needs to show that the WCED, in not appointing the applicant and appointing the second applicant, acted in a manner which would ordinarily allow a Court of law to interfere with the decisions of a functionary by proving that the WCED had acted irrationally, capriciously or arbitrary, was actuated by bias. The appointment of JD Norman was not wrong with the information at hand by the HOD. Had the HOD been aware about the correct and accurate information of the applicant he probably had appointed the applicant.
As indicated, the applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did suffer prejudice during the recruitment and selection process for the promotion post. I find that the procedure followed by the WCED was not fair regarding not handling his grievance and not adhered to the moratorium placed on the process and that an Unfair Labour Practice was not committed by the first respondent not to shortlist the applicant based on interpretation of information about his qualifications.
Considering the above I make the following award.

AWARD

The first respondent did not commit an unfair labour practice in the non-appointment of the applicant to the advertised position of Deputy Principal at Dennemere Primary School Post Number 2475. It is not appropriate to remove the successful candidate, JD Norman, from the post as she met all the requirements to be appointed, nor can the process be redone.
However, the applicant, JD Joos, must be compensated for six (6) months the difference between his present salary notch and the salary notch of the Deputy Principal post due to procedural unfairness regarding the grievance he put in and non-adherence to the moratorium to freeze the process. The monthly difference in the salary notch between his salary and the Deputy Principal salary must be paid by the WCED over the next three (3) months from the end of March 2026 up to the end of May 2026 to the amount R8 221-50 per month. The total amounted to R 24 664-50 (twenty-four thousand six hundred and sixty four rand and fifty sent).
There is no order as to costs.

Signature: