10 September 2026 – ELRC117-26/27MP

ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC117-26/27MP

SADTU OBO XOLILE TSOBOLO APPLICANT

And

EDUCATION DEPARTMENT OF MPUMALANGA 1st RESPONDENT

AMANDLA TREVOR MABUNDA 2nd RESPONDENT

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended was finalized via Teams, on 26 and 27 August 2026.
1.2. Both parties attended the proceedings. The 1st respondent was represented by Frieda Rieger, while the applicant was represented by Thandoluhle Nyundu, union official from SADTU.
1.3. The 2nd respondent never attended the proceedings on both occasions. It is the 1st respondent’s undisputed submission that the 2nd respondent does not exist on its records and was never appointed to the disputed position.
1.4. The hearing was held in English and was digitally recorded.
ISSUES TO BE DECIDED
2.1. Whether or not the decision of the 1st respondent to appoint the alleged 2nd respondent to the position of Departmental Head at Yedwa Primary School was procedurally and substantively fair.
2.2. If the appointment of the alleged 2nd respondent was procedurally and substantively unfair, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.
BACKGROUND TO THE ISSUES
3.1. The applicant viewed her non-appointment to the position of Departmental Head to be substantively unfair and prayed to be appointed to the position as advertised.
3.2. The following issues are common cause to both parties:
a) That the applicant applied for the position of Departmental Head, shortlisted and interviewed.
b) That applicant was recommended by the school SGB as the candidate to be appointed.
3.3. Prior to the commencement of the proceedings, the applicant submitted a bundle of documents marked “A”, while the 1strespondents submitted a bundle of documents marked “R”.
3.4. The applicant closed his case after leading her own evidence and one witness, while the 1st respondent closed its case after leading the evidence of one witness.
3.5. Both parties submitted written and oral closing arguments immediately after closing their respective cases.
SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter.
THE APPLICANT’S CASE
5.1. The applicant, Xolile Tsobolo, testified that she applied for the disputed position and she was shortlisted and interviewed. After the interviews, the school SGB recommended her as the preferred candidate to be appointed to the position. Before the appointment of the 2nd respondent, the school SMT comprised of three males. Another reason for the SGB’s recommendation was to balance the school employment equity profile. The Circuit Manager deviated from the SGB’s recommendation and appointed a male educator to the position, which was not in compliance with the 1st respondent’s equity plan. The 2nd respondent was appointed with effect from 01 February 2026.
5.2. Under cross-examination, the applicant testified that she is not aware if the 2nd respondent has accepted and signed the preliminary offer of appointment. According to her knowledge, the Departmental Head position at Yedwa Primary School is currently not occupied. She is not aware that the school SGB has written to the 1st respondent and requested that the position be re-advertised if she was not appointable or to appoint her to the position. According to the SGB letter dated 06 February 2026, the dispute concerning the disputed position remains unresolved. The appointment was made when the 1st respondent issued the appointment to the 2nd respondent.
5.3. The applicant’s witness was Lucky Richard Khoza. He testified that he is currently the school principal of Yedwa primary school. He attended interviews for the disputed position on 23 October 2025. After the interviews the applicant was ranked number one and the SGB also recommended her as the preferred candidate to be appointed. The 1st respondent deviated from the SGB recommendations without proving reasons. The SGB wrote to the 1st respondent and requested reasons for the deviation and that the 1st respondent should re-advertise the position or appoint the applicant. The 1st respondent never respondent to the SGB’s letter. Despite that the applicant was ranked the highest by the interview panel, the SGB recommended her to comply with the school equity plan. The school’s SMT is comprised of three males.
5.4. Under cross-examination, Lucky Richard Khoza, testified that the position of Departmental Head at Yedwa Primary School is not occupied. Amandla Trevor Mabunda never reported for work on 01 February 2026 to date. Despite the fact that the appointed educator never reported for duty, the 1st respondent has made an appointment.
THE 1st RESPONDENTS’ CASE
6.1. The 1st respondent witness was Thandiwe Chiloane. She testified that the position of Departmental Head at Yedwa Primary School is still vacant. Amandla Trevor Mabunda is not in the employ of the 1st respondent and was never part of the interviews. According to the persal documents, the position was reserved for the appointment of Mr S.M. Mabunda. Amandla Trevor Mabunda or Mr S.M. Mabunda never accepted the preliminary offer of appointment. The preliminary offer of appointment does not confirm appointment. Appointment is confirmed after the candidate has accepted the offer and returned the signed preliminary offer of appointment to the 1st respondent.
6.2. Under cross-examination, the witness testified that the applicant was meeting all the necessary minimum requirements. It is correct that the school SMT comprises of three male educators. Amandla Trevor Mabunda or Mr S.M Madunda never accepted the preliminary offer of appointment. The SGB recommended the applicant as a preferred candidate to be appointed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision not to appoint him to the position of Departmental Head was procedurally and substantively unfair.
7.2. The Collective Agreement No 3 of 2016 ELRC Guidelines: Promotion Arbitrations, provides that where the employee complains that another employee was promoted, he or she must show that:
a) he or she has the necessary skills; and
b) the person who was promoted does not possess the same or same level of skills.
7.3. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for unsubstantial reasons, or based upon any wrong principle or in a biased manner.
7.4. It is common cause that in this matter, that educator/candidate who was recommended for appointment by the district director did not accept the preliminary offer of appointment and the position remained vacant at the time of the arbitration proceedings. The 1st respondent failed to give any reasonable explanation why the applicant was not appointed after the recommended candidate declined the offer. During cross-examination, the 1st respondent’s witness conceded that the applicant met all the minimum requirements of the position. It is also undisputed evidence that the applicant was ranked first during the interviews and that she was recommended by the SGB as a preferred candidate to be appointed to balance the equity profile of the school. When considering that the applicant was ranked first during the interviews and that she meets all the minimum requirements of the position, does show that the applicant is certainly competent to perform the duties attached to the position. The school principal also stressed that it was very important/necessary that the applicant be appointed to the position to balance the equity profile of the school. The 1st respondent failed to adduce any explanation why it has deviated from the school SGB recommendation and offer the
7.5. On the other hand, the 1st respondent’s argument focuses more on the fact that the appointment has not been finalized, and therefore the dispute was referred prematurely. When the 1st respondent officially bypassed the applicant and formally extended a legal offer to someone else, unfair conduct has already occurred. The 1st respondent had finalized the candidacy of the applicant when it officially extended a legal offer to the 2nd respondent, despite what the 2nd respondent does with the offer.
7.6. In Department of Rural Development and Agrarian Reform v General Public Service Sectorial Bargaining Council and Others [2020] 4 BLLR 353 (LAC): the Court held that the fact that the Department re-advertised the post in 2014 and had not completed the appointment process in 2012, is of no consequences. The unfair labour practice was committed during 2012.
7.7. I therefore find that the respondent’s failure to promote the applicant to the post of Department Head at Yedwa Primary School constituted an unfair labour practice.
7.8. In the circumstances, I conclude that the applicant has proven on balance of probabilities that the decision by the 1st respondent not to appoint her to the position of Department Head was substantively unfair.
AWARD
8.1. The 1st respondent is ordered to appoint the applicant to the position of Departmental Head at Yedwa Primary School with effect from 01 October 2026.