IN THE ELRC ARBITRATION
BETWEEN:

M.M.F MDLALOSE the Applicant”
and

DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st “Respondent”
SIPHO ERIC MLOTSHWA 2nd “Respondent”

ARBITRATION AWARD

Case Number: ELRC547-24/25KZN

Last date of arbitration: 30 July 2025

Date of submission of closing arguments: 23 August 2025

Date of award: 03 September 2025

NTOMBIZONKE MBILI
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
The General Secretary
ELRC Building
Private Bag X126
Centurion
0046
Gauteng
RSA

Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za

Physical Address
ELRC Building
261 West Avenue
0046
RSA

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration commenced on 05 November 2024, proceeded on 17 February 2025, 03 April 2025 and 30 July 2025.
2. In order to expedite the matter, the parties agreed that the matter should proceed as a stated case. The Applicant submitted its closing arguments on 11 August 2025, the 1st Respondent responded on 18 August 2025 and the Applicant replied on 23 August 2025.
3. The arbitration was held at the Newcastle office of the KwaZulu-Natal Department of Education.
4. The Applicant was initially represented by Mr. Andile Vilakazi of Binda Attorneys. However, Binda Attorneys later withdrew as he Applicant’s legal representatives. Subsequently, Mr. Philani Shangase from AP Shangase and Attorneys assumed representation of the Applicant.
5. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Brian Mdlalose, employed by the Department as a Deputy Director and the second Respondent, Mr Sipho Mlotshwa initially represented himself and later was represented by Mr Zubair Chothia of Chothia Attorneys.
6. Bundles of documents were submitted on behalf of the Respondent and the Applicant respectively. The proceedings were digitally and manually recorded. The services of an interpreter were utilized.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

7. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) of the Labour Relations Act 66 of 1995 (LRA) relating to Appointment/Promotion.
8. I am required to decide whether the first respondent committed an unfair labour practice by failing to promote the applicant to the position of principalship at Zama High School.

BACKGROUND

Common Cause Facts

9. Post number 1480 was advertised in HRM 20 OF 2023. The post description pertains to the principal position at Zama High School.
10. Both the Applicant and second Respondent were shortlisted and interviewed for the position. The applicant ranked in second position.
11. The second Respondent was appointed at Zama High School to the post of principalship on 01 September 2024.
12. The second respondent had been employed as a Principal of Sesiyabonga High School. In or about 2012 the Second Respondent was involved in a fight with his Deputy Principal, during the strike action at Sesiyabonga High School. Both the Second Respondent and his Deputy were disciplined by the First Respondent, and the sanction of a suspension without pay was imposed.
13. The South African Council for Educators (SACE) conducted its own investigation and decided to revoke the teaching license of the second respondent in or about 2016. As a result, the second respondent was deemed to have resigned and his services terminated in terms of section 15 of the Employment of Educators Act 1998 (EEA).
14. On or about 2022 the second respondent was re-issued with a teaching license by SACE and subsequently re-employed by the first respondent as a level one Educator at Sisizakele Primary School.
15. Mlungisi Mkhulisi, an Educator at Sesiyabonga High School, opened a criminal case of assualt against the second respondent. The incident took place outside the school during the December holidays. On 21 February 2024, the second respondent pleaded guilty under section 112 (2) of the Criminal Procedure Act and was convicted of assault causing grievous bodily harm. He received a five-year suspended sentence as a result.
16. The Applicant contends that the decision made by the first respondent to appoint the second respondent was unfair, unreasonable, capricious and irrational.

SUMMARY OF ARGUMENTS

The Applicant’s case

17. The Applicant submitted that the case before me concerned an unfair labour practice related to promotion.
18. The Applicant, a long-serving Deputy Principal acting as Principal at Zama High School, was passed over for a permanent Principal position in favour of the Second Respondent.
19. The key facts are largely agreed upon (“common cause”). Both candidates were shortlisted and interviewed. The Interview Committee and Governing Body ranked the Second Respondent first and the Applicant second. The Head of Department (HOD) of the First Respondent (the Education Department) approved this recommendation and appointed the Second Respondent.
20. The core of the dispute arises from the Second Respondent’s history. He had previously been dismissed (deemed to have resigned) after a fight with his Deputy Principal, resulting in his teaching license being revoked for a year.
21. Crucially, after applying for the post but before his appointment, he was convicted and given a suspended sentence for assault with intent to do grievous bodily harm on a colleague. The HOD was aware of this criminal record but chose to proceed with the appointment anyway.
22. The Applicant argues that the decision to appoint a candidate with a recent, serious violent conviction over her, a candidate with a long, unblemished record, was grossly unreasonable, arbitrary, and thus an unfair labour practice. She seeks an order setting aside the Second Respondent’s appointment and being promoted to the position herself.

The Respondent’s Case

23. The Department argued that the appointment was fair, and the Applicant has not proven her case.
24. The department further argued that the Applicant concedes the appointment process was procedurally fair, meaning that she accepts that the 2nd Respondent was the best candidate from the process.
25. It is argued further that the second respondent’s teaching license was revoked by SACE due to a default judgment (he wasn’t notified properly) and he was thus deemed to have resigned, not dismissed for misconduct.
26. Regarding the criminal record it was argued that it stems from an assault on a colleague (Mr. Mkhulisi), but the Department argued that the assault was a personal matter, not work-related, and happened off school premises.
27. Regarding the fight with the deputy principal, it was argued that it involved both parties; both parties were charged, both pleaded guilty, and both received the same sanction. It was not a one-sided attack.
28. The 2nd Respondent declared his criminal record to the Department when he applied for the position.
29. The Respondent relied on the O’Connor v Lexis Nexis case, to argue that a criminal record cannot be used for unfair discrimination unless it is relevant to the inherent requirements of the job.
30. It was argued that the second respondent’s criminal record was not relevant to the core duties of a principal (leadership, communication, personnel management, etc.), as he has a proven track record in these areas.
31. It was further argued that the second respondent has since worked effectively with union representatives and enrolment at the school has since improved, this all because of the second respondent’s efforts in effectively managing the school.

Analysis of the Evidence

32. The dispute before me concerns itself with a claim of unfair labour practice allegedly committed against the applicant by the first respondent. It is alleged that the first respondent committed this unfair labour practice when the applicant was not appointed into the position of Principal at Zama High School.
33. The claim is brought under Section 186(2) of the Labour Relations Act (LRA), which defines an unfair labour practice as inter alia, “unfair conduct by the employer relating to the promotion of an employee.”
34. Various court decisions recognise that promotion decisions are primarily a managerial prerogative. An arbitrator cannot interfere simply because they would have made a different decision.
    (see the cases of Provincial Administration Western Cape (Department of Health and Social Services) v Bikwani & Others (2002) 23 ILJ 761 (LC), SAPS v Security Sectorial Bargaining Council & Others (2010) 8 BLLR 892 (LC); Noonan v SSSBC & Others [2012] 22 ILJ 2597 (LAC)
    )
35. An arbitrator may only interfere if the employer’s decision is unfair. This has been accepted as trite in our law, (See the cases of Apollo Tyres, SAPS v SSBC, Ndlovu), to mean conduct that is grossly unreasonable, arbitrary, capricious, or inconsistent, mala fide or based on improper motives.
36. Both parties easily clear the first hurdle, which deals with their qualification for the position. The Applicant has 34 years of experience and was the acting Principal. The Second Respondent, despite a 7-year gap, had prior experience as a Principal. Both were deemed qualified enough to be shortlisted and recommended.
37. When comparing the candidates, the Applicant has a clean disciplinary and criminal record. The Second Respondent has a history of violent misconduct. The decision to prefer him is portrayed as arbitrary and capricious considering this stark contrast.
38. It must be pointed out however that the second respondent disclosed the criminal record from the word go, he harboured no intentions to lie about it. It happened some time back and the second respondent has demonstrably not engaged in similar misconduct after the reinstatement of his teaching licence in 2023. There is accordingly no evidence that the second respondent would engage in similar misconduct. The second respondent has also been punished for his misconduct, to again place him at a disadvantage for something he has been punished for would simply be unfair and tantamount to double jeopardy.
39. There is no evidence that the HOD did not consider the criminal record or what weight was accorded to it. The scoring however clearly showed that the second respondent was the best candidate for the position, the parties agree on this as well. There is accordingly no need to interfere with the prerogative of the employer.
40. In the recent case of, O’Connor v Lexisnexis (Pty) Ltd (2024) 45 ILJ 1287 (LC) (the Labour Court at para [84] held as follows

“[84] In the present matter the applicant has an inherent attribute that is
intimately connected to how he is perceived by society. He has been
convicted of a crime. Our criminal justice system is premised on the idea that once the criminal has paid their debt to society, that person must be allowed back into society. To deny that person their right to freely participate in society with dignity, is to deny them their Constitutional rights as a person.”

41. There is accordingly no universal law that outlaws the appointment of persons that have previous convictions and in fact it amounts to unfair discrimination if the differentiation cannot be linked to an inherent job requirement. I am not convinced that the evidence suggests that this was an unfair appointment, on the contrary the evidence suggests that the school is blossoming at the helm of the second respondent.
42. In Noonan v SSSBC & Others [2012] 22 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process do not constitute unfairness justifying an interference with the decision to appoint.
43. I accordingly find no justification for interfering with the decision to appoint the second respondent.

AWARD

I accordingly make the following award:

44. The referral is dismissed.

NTOMBIZONKE MBILI
Arbitrator 03 September 2025
ELRC547-24/25KZN