10 September 2025 -ELRC123-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KWAMAQOMA

                            Case No ELRC123-25/26EC

In the matter between

NAPTOSA obo Mbuyiseli Sandi Applicant

and

Department of Education: Eastern Cape 1st Respondent

and

SADTU obo Dumile Mboniswa 2nd Respondent

ARBITRATOR: W R Pretorius

HEARD: 30 June 2025 and 19 August 2025

CLOSING ARGUMENTS: 26 August 2025

DATE OF AWARD: 5 September 2025

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to promotion

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

This matter was held at the Amathole West District Office in KwaMaqoma. The Applicant, Mr Mbuyiseli Sandi, attended was represented by Mr. Aaron Mhlontlo an official of the National Professional Teachers’ Organisation of South Africa (NAPTOSA). The 1st Respondent, the Department of Education: Eastern Cape, was represented by its employee, Mr. Garth Jacobs, whilst the 2nd Respondent, Mr. Dumile Mboniswa, was represented by Mr. Toto Tsheko, an official of the South African Democratic Teachers’ Union (SADTU).
These proceedings conducted in English were recorded digitally supported with handwritten notes.

THE ISSUE IN DISPUTE

I am required to determine whether the 1st Respondent committed an unfair labour practice in relation to promotion as contemplated by section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA), by its decision not to shortlist the Applicant after he applied for the post of Chief Education Specialist (CES): Circuit Management Centre (CMC) Head, Amathole West District and determine appropriate relief should I find that the Applicant has discharged the onus to show an unfair labour practice has been committed.

THE BACKGROUND TO THE DISPUTE

The parties had concluded a pre-arbitration minute which forms part of the common bundle of documents from pages 9 to 12 as summarised hereunder:
In terms of the common cause facts, the parties agreed:

(a) The Applicant is currently employed as a PL6 DCES and has been in the employ of the 1st Respondent since 1 April 1996 and is currently stationed at the Head Office.
(b) The Applicant earns R1,023,144.00 per annum and the post in question ranges between R1,049,106.00 and R1,608,762.00 per annum.
(c) The Applicant was not shortlisted for the position CMC Head as advertised in the E recruitment portal in December 2024 with reference number CMA08/11/2024.
(d) The Applicant submitted a grievance which remained unresolved.
(e) The Applicant once worked as the Circuit Manager in the Grahamstown District and has acted as the Director: IDS&G for Norms and Standards School Funding wherein the Circuit Managers and School Principals operated under his supervision.

The facts in dispute were whether:

(a) The sifting process was done as per the policy?
(b) The sifting process was done as per the inherent requirements as outlined in the advert?
(c) The panel had developed processes in accordance with the applicable legislation to discharge their responsibilities?
(d) The Applicant and other shortlisted candidates met the criteria set by the panel in its increasing levels which resulted in the Applicant not being shortlisted?
(e) The recruitment was digitally recorded as per Circular 14 of 2019 of the 1st Respondent?
(f) The panel, particularly Mr. Mancoko, was influential and biased towards the 2nd Respondent?

The Applicant only challenged procedural unfairness and was seeking 12 months’ compensation for harm and pain suffered.
The parties used a common bundle and accepted the documents for what they purported to be unless specifically challenged.

SURVEY OF EVIDENCE AND ARGUMENT

I have considered all the evidence and arguments and because section 138 of the LRA requires brief reasons, I have only referred to the evidence and arguments necessary to substantiate my award. What therefore follows hereunder is a summary of the evidence and arguments of the parties and not a verbatim record of proceedings.
The Applicant was the only witness in his case. The 1st Respondent called one witness, whilst the 2nd Respondent did not testify. All evidence was presented under oath.
The Applicant’s case
Mr. Mbuyiseli Sandi, the Applicant, testified that the 1st Respondent acted unfairly in not shortlisting him for the position in dispute, because he met all the requirements as stated in the advertisement. He submitted that he previously acted as CES: Norms and Standards for School Funding and he is acting currently as acting CES: Employee Relations.
It was his submission that there were several procedural flaws relating to the appointment process these were in relation to paragraph B.5.3. of PAM (Sifting school-based and office-based educator posts).
In this regard, he submitted that no sifting report was presented to the trade unions in the ELRC as provided for in par. B.5.3.3 of the PAM. The proceedings were not recorded as provided for in Circular 14 of 2019.
The shortlisting criteria of the panel on page 64 of the common bundle in relation to acting CES was not part of the advertisement. Ms. Matam (Matam), one of the shortlisted candidates, acted in the position of CES: School Management and Governance which was different from the advertised position. Secondly, Matam should not have been shortlisted, because she only acted for 6 months in the position at the time of the advertisement.
According to him, the new organogram only became effective as from 2019 and not 2017 which meant that the 2nd Respondent’s acting experience in the post as from 2017 was not correctly captured on the master list which misled the panel.
Mr. Mancoko (Mancoko) had a close relationship with the 2nd Respondent and he believed that Mancoko was biased and influenced the outcome of the recruitment process in favour of the 2nd Respondent following an altercation between him and Mancoko during 2021.
During cross-examination by the 1st Respondent, he conceded that at the time of the advertisement; he was appointed as DCES: Employee Relations and that he did not have experience as CES: CMC Head. According to him, it was unfair for the panel to use the additional criteria of acting as CES: CMC Head. He agreed that in order to be shortlisted, a candidate must have acted in the position for at least 12 months. It was put to him that there was no evidence that Mancoko influenced the outcome of recruitment process, considering the scoring of the panel members; however, he maintained his position.
In re-examination he indicated that the additional criteria used by the panel members fell outside of the requirements in the advertisement. He stated that the advertisement did not specify the issue of gender equality as considered by the panel. He stated that Matam did not act as CES: CMC Head.
During cross-examination by the 2nd Respondent, he indicated that Mancoko was in charge of the Directorate for CES: CMC and the additional requirement of acting as CES: CMC showed his bias and influence. When asked whether Mancoko was bias to the rest of the shortlisted candidates, he said he was not sure but Mancoko influenced the outcome of the process. He was unable to explain the relationship between Mancoko and the 2nd Respondent.

The 1st Respondent’s case

Mr. Simon Ncapayi (Ncapayi), one of the panel members, testified that out of 88 candidates the panel had to shortlist five (5) candidates. He corrected himself afterwards that the total number of candidates were 79 as reflected on page 64 of the common bundle.
He set out the process the panel followed, this being that the applications were sifted by checking how many candidates were already CMC Managers and also currently serving Circuit Managers. The panel also considered gender equity.
He submitted that from 2019 there were three (3) male acting CES: CMC Heads in the District who were shortlisted. The panel then decided that the remaining two candidates should be females.
During cross-examination by the Applicant, he was unable to confirm whether the sifting report was presented to the trade unions.
It was put to him that sifting was not done in line with the policy, he disagreed and submitted that there were two processes, one being the master list of 79 candidates and the shortlist of 5 candidates.
He was unable to identify from the shortlisting minutes reference to ‘acting CMC’s and currently serving Circuit Managers’. When asked why Mr. Zamie Sinuka, a serving Circuit Manager, was not shortlisted, he responded that the panel also consider gender equity, hence he was not shortlisted.
He confirmed that the panel members, including Mancoko, were aware of the acting CES: CMC Heads in the District. He confirmed that the only agreed upon procedure was that a candidate was considered if he/she had been acting for more than 12 months in the position.
When asked why Messrs Mrwebi Mluleki and Toto Siyabulela, acting CES: CMC Heads, were not shortlisted, he submitted that the panel had already identified three acting male candidates within the District and decided to consider gender equity. He acknowledged that the advert was silent on the issue of gender equity. He agreed that the advert did not state the requirement of ‘5 years’ experience in middle management’ as reflected in the shortlisting minutes.
He accepted that the shortlisting minutes had gaps regarding the criteria used by the panel. According to him, the Applicant was not shortlisted, because he was not acting as CES: CMC Head at the time of the advertisement.
During cross-examination by the 2nd Respondent, he indicated that the panel was guided by the PAM document. He denied that the panel was influenced by Mancoko and stated that the criteria set out in the shortlisting minutes were discussed and agreed to by all panel members in the presence of the invited trade union, SADTU. He reiterated that the Applicant was not shortlisted because he was not acting as CES: CMC Head at the time of the advertisement. He submitted that the panel did not use Circular 14 of 2019.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS

In unfair labour practice disputes the onus to the prove the existence of the unfair labour practice rests with the employee party as such the Applicant is required to prove that an act or omission had occurred with renders his non-promotion an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
It is settled law that when deciding whether a procedure conducted in terms of a collectively agreed procedure, as in casu, 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.
In their written closing arguments, all the parties correctly referred to a number of judgments which related to the issue of what would constitute and unfair labour practice in respect of promotion which I do not intend to repeat, other than the apply the principles relevant to the matter before me.
I have observed both witnesses and have no reason to doubt their reliability and credibility. Their conflicting versions will be decided on its probabilities.
The Applicant in terms of the pre-arbitration minute only challenged procedural unfairness. I am bound by the parameters set in the pre-arbitration minute between the parties.
In this regard, it is trite that in order for the Applicant to prove an unfair labour practice relating to promotion, he should have at least demonstrated that there was conduct that denied him a fair opportunity to compete for the post or conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and misled the employer.
It is settled law that strict compliance with the guidelines for appointments provided in the PAM and ELRC Collective Agreements is not necessary.
Based on the evidence before me, I agree that there had been non-compliance with certain requirements of PAM, inter alia there was no sifting report presented to the trade unions as per par. B.5.3.3; there was non-compliance with par. B.5.4.9 in shortlisting Matam and there was non-compliance with Circular 14 of 2019.
However, none of these, for the reasons hereunder, have been shown by the Applicant to have prevented him from competing for the post.
It was the contention of the Applicant that if sifting was done in accordance with paragraph B.5.3 of the PAM, the other shortlisted candidate, Matam, would not have been shortlisted, which has prejudiced him. In this regard, the Applicant submitted that the absence of the HR sifting document is an indication that sifting was not done.
I am not persuaded that shortlisting was not done. Instead, the incompleteness of the shortlisting minutes, as agreed to by Ncapayi during cross-examination, resulted in a situation whereby the procedure followed in determining the five shortlisted candidates out of 79 candidates was blurred. The question whether this has resulted in an unfairness is being address hereunder.
It was conceded by the Applicant during cross-examination that a panel is allowed to set additional criteria to the minimum requirements set out in the advertisement in order to set up a list of shortlisted candidates not exceeding five candidates. See paragraph B.5.4.9 of the PAM. It has been established that the Applicant met all the additional criteria, except that he was not acting as CES: CMC Head at the time of the advertisement.
There was no evidence before me to show that the poor minute writing had resulted in an unfairness towards the Applicant, considering that the process conducted by the panel members was monitored by one of the invited trade unions, SADTU. It is not helpful for NAPTOSA to complain about a process that they did not attend; whilst being invited.
I am persuaded by the evidence of Ncapayi that the panel was guided by the PAM in conducting the shortlisting process. The Applicant was responded to in writing by the chairperson of the panel, Mr. Mpupu (Mpupu) regarding his correspondence concerning his non-shortlisting in the disputed post whereafter the Applicant lodged a grievance which ultimately resulted in this dispute before the Council.
The table below shows the additional requirement as determined by the panel, namely the acting experience in the position as at the date of the advertisement.
SHORTLISTED CANDIDATES
Applicant Mr. D Mboniswa Mr. M Mncono Mr. S Seyisi Ms. V Siciko Ms. Y Matam
Acting CES: Norms and Standards for School Funding
1 yr, 11 months, prior the advert Acting CES: CMC
7 yrs, 3 months at the time of advert Acting CES: CMC
4 yrs, 7 months at the time of advert Acting CES: CMC
4 yrs, 11 months at the time of advert Acting CES: CMC
3 years at the time of advert Acting CES: School Management & Governance
6 months at the time of advert
It was the contention of the Applicant that Matam was shortlisted outside of the requirements of par. B.5.4.9 of the PAM and the advert in that she only acted for 6 months and that the post she acted in was different from the advertised position.
Based on the panel’s own additional criteria, I agree that Matam ought not to have been shortlisted, because she was only acting in the position for 6 months as at the time of the advertisement, considering paragraph B.5.4.9 of the PAM and she had no requisite experience as CES: CMC Head as in the case of the Applicant.
I am not persuaded that the Applicant was prejudiced by the shortlisting of Matam, because he also did not have requisite experience as CES: CMC Head, considering his own version that the post Matam was acting in was different to the position of CES: CMC Head.
In my view, the Applicant would have had a case if Matam was the successful candidate.
It cannot be said, as argued by the Applicant, that the additional requirement of ‘acting as CES: CMC Head’ was discriminatory, because the 2nd Respondent and three other shortlisted candidates, as per the table above, met that requirement.
It is common cause that the panel did not record the proceedings as provided for in Circular 14 of 2019. I prefer the Applicant’s argument that whilst it was practice not to record the recruitment proceedings, it cannot excuse the 1st Respondent from complying with its own procedures.
I have difficulty in accepting the 1st Respondent’s position that the afore Circular is only applicable to recruitment processes conducted at its Head Office. This is because such an argument is unfair given its inconsistency compared to the same recruitment processes conducted elsewhere under the control of the same Head of Department.
Inasmuch as the recording of the sifting process would have compensated for the poor construction of the shortlisting minutes, I am not persuaded that the afore minutes did not favour the 2nd Respondent as it is proven that except for Matam, all the other shortlisted candidates had the requisite experience as CES: CMC Head.
I am persuaded by the 1st Respondent’s argument that whilst the Applicant subjectively felt that his experience in acting in different posts gave him an advantage to be shortlisted; he unfortunately never acted as a CES: CMC Head which meant he lacked the requisite experience relevant for the advertised post. Given the aforementioned, I am satisfied that the 1st Respondent provided a rational explanation as to why the Applicant was not shortlisted. Put differently, if the Applicant had the requisite experience and was not shortlisted; he would have had a case to be heard.
There is no substance in the Applicant’s submission that the 2nd Respondent misled the panel regarding his management experience as acting CES: CMC Head, considering his CV on page 47 which clearly indicated that he had 3 years’ experience.
The Applicant’s allegation of bias against Mancoko in that he influenced the appointment of the 2nd Respondent is not supported by the scores recorded during the interviews where Mpupu scored the 2nd Respondent the highest and not Mancoko. It is highly improbable for Mancoko to have influenced the panel members in the presence of one of the invited trade unions, SADTU. I prefer the evidence of Ncapayi that Mancoko did not influence the other panel members in setting the additional criteria as the Applicant was not the only acting CES: CMC Head shortlisted.
The Applicant was unable to establish how Mancoko was allegedly biased towards the 2nd Respondent through his own evidence which was based on an alleged incident between him and Mancoko which took place during 2021 some three years prior to this dispute. The Applicant was also unable to a plausible explanation regarding the “close relationship” between Mancoko and the 2nd Respondent to support his allegation of bias as pointed out during cross-examination by the 2nd Respondent.
The Applicant’s argument that Messrs Zamie Sinuka, Mrwebi Mluleki and Toto Siyabulela ought to have been shortlisted was persuasively responded to by Ncapayi during cross-examination, i.e., that the panel also considered the issue of gender. Secondly, there is no evidence before me that the aforementioned candidates have disputed their non-shortlisting.
In terms of gender equity, it is settled that the State as Employer, being a designated employer, is obliged to ensure compliance with its equity targets. Therefore, whether the advert was silent on gender equity is of no moment.
Finally, it is settled law that it is the right of an employer to select and appoint candidates as it see fit, provided the decision is made fairly and does not involve discrimination, bad faith or grossly unreasonable conduct .
In light of all the aforementioned reasons, I find that the decision not to shortlist the applicant was rational, fair and reasonable in the circumstances. In this regard, there is no reason to interfere with the prerogative exercised by the 1st Respondent.
I, accordingly, find that the Applicant has failed to discharge the onus to prove that 1st Respondent had committed an unfair labour practice in relation to its decision not to shortlist him.
In the premises, I make the following award.

AWARD

The Applicant has failed to establish that the 1st Respondent committed an unfair labour practice in relation to promotion as contemplated by section 186(2)(a) of the LRA.
There is no order as to costs.