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10 September 2026 – ELRC125-26/27GP

Case Number:   ELRC125-26/27GP

Commissioner:  Ntjatja Klaas Aphane

Date of Award: 10 September 2026

In the ARBITRATION PROCEDINGS between:
MALANGANI CALVIN LUTHADA
(The Applicant)
And
DEPARTMENT OF EDUCATION: GAUTENG PROVINCE
(The First Respondent)
And
MOKGADI PORTIA RAMUSHU
(The Second Respondent

DETAILS OF THE HEARING AND REPRESENTATION

  1. This arbitration award concerns an alleged unfair labour practice relating to promotion. The parties are Malangani Calvin Luthada, the Applicant; the Department of Education: Gauteng Province, the First Respondent; and Mokgadi Portia Ramushu, the Second Respondent.
  2. The dispute was referred to the ELRC in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA). The arbitration was conducted under the auspices of the ELRC in terms of section 191(5)(a) of the LRA, and this award is issued in terms of section 138(7) of the LRA.
    Hearing dates and venue
    • The arbitration was scheduled and heard on 28 July and 20 August 2026. On 28 July 2026, parties were online through MS Team.
    • All parties and witnesses attended in person at the Department of Education, 17 Simmons Street, Johannesburg, Provincial Offices.
    Representation
    • The Applicant appeared in person and was represented by his trade union official, Thabo Mofokeng of SADTU, with Linda Sibangela attending as an observer.
    • The First Respondent was represented by its Labour Relations Manager, Hassan S Macheke.
    • The Second Respondent appeared in person and she was represented by her trade union official, Marcas Malaka of SADTU.
    Record and relief sought
    • The proceedings were digitally recorded and handwritten notes were also taken.
    • The Applicant sought protective promotion to the post of Departmental Head (PL2) at Glenhazel Primary School (Mathematics, Natural Science and Technology) to PL2 retrospective to 01 May 2026.

ISSUES TO BE DECIDED

  1. The issues for determination are the following:
  2. Whether the Respondent’s failure to promote the Applicant to the position of Departmental Head (Mathematics, Natural Science and Technology), PL2, constituted an unfair labour practice.
  3. If so, what relief, if any, should be granted.

BACKGROUND TO THE DISPUTE

  1. Unless otherwise indicated, the following facts are common cause.
  2. The Respondents are the Department of Education: Gauteng Province and the successful incumbent, Mokgadi Portia Ramushu. The successful incumbent’s appointment took effect on 01 May 2026.
  3. The First Respondent advertised the post of Department Head: (Mathematics, Natural Science and Technology) (reference JE75ED1014) for the Glenhazel Primary School. (Mathematics 4-7, Natural Science 4-7 and Technology).
  4. The Applicant and the successful incumbent were short listed and contested for the position and were both recommended for appointment. The Applicant was recommended as the first candidate and the successful incumbent as the third recommended candidate. The Applicant was the third candidates in terms of scoring and the successful incumbent the second in terms of scoring.
  5. The Second Respondent, Mokgadi Portia Ramushu, was appointed by the District Director because out of the three submitted and recommended candidates, she was the only one who met the inherent requirements of the role, the Applicant and the other recommended candidates’ credentials did not meet the inherent requirement of the post.
  6. The Applicant alleged that the Respondent committed an unfair labour practice. The Respondent denied the allegation and sought dismissal of the dispute.

Procedural history
• The Applicant referred an unfair labour practice dispute relating to non-promotion to the ELRC in terms of section 186(2)(a) of the LRA.
• Conciliation was held, and a certificate of outcome was issued recording that the dispute remained unresolved.
• The arbitration was then scheduled for 28 July and 20 August 2026.
Documentary and oral evidence
• The Applicant submitted bundle A, comprising pages 1 to 45.
• The First Respondent submitted bundle R, comprising pages 1 to 126.
• The Second Respondent did not submit any documents and testified in support of her case and the first Respondent’s case.
• The Applicant testified in support of his case.
• The First Respondent called one witness, Mokgadi Portia Ramushu.
12. Because the Applicant was represented by his trade union representative, I adopted an adversarial approach in determining the merits of the dispute fairly. The parties were also directed to file written heads of argument, and they complied on 27 August 2026.

PRELIMINARY ISSUES

  1. There were no preliminary issues requiring determination.

SURVEY OF THE EVIDENCE

  1. What follows is a summary of the evidence relevant to the determination of the dispute. It is not intended to reproduce every aspect of the evidence presented.

THE APPLICANT’S CASE

Evidence of the Applicant
15. The Applicant, Calvin Malangani Luthanda, testified that he is employed by the Respondent as a PL1 Educator at the Glenhazel Primary School, with 27 years of teaching experience. He stated that he was a teacher who met minimum requirements of the post and described himself as a suitably qualified and experienced teacher. He holds a three years (3) Teachers Diploma with several subjects’ including mathematics, Advanced Certificate in Education Management (ACE), he attended and completed Financial Management and Conflict Management courses as well.
16. He is aggrieved because the District Director overlooked his recommendation for appointment by the SGB and the School Principal. The School Principal told him that the reasons the Applicant was not appointed was that the District Offices viewed him as knowing too much.
17. He met the minimum requirement of the post by virtue of having mathematics as a school subject in his Teachers Diploma academic records. He was recommended by the SGB and the Principal and form C can bear testimony to his credential. The District Offices failed to respond to the SGB enquiries in relation to his non-appointment and the District Director’s deviations from recommendations.
18. His complaint was that the third recommended candidate was appointed against the wishes of the SGB and the School Principal. He was one of the two internal candidates from the same school. He and Randy Mahlangu were internal candidates from Glenhazel Primary School. He was currently teaching Afrikaans and Life Skills at the School.
19. The Applicant indicated that the successful incumbent met two requirements as per page R80 and R81.
20. The Applicant believes his appointment would promote equity purposes, in compliance with ELRC Collective Agreement 1 of 2021, clause 14.2 on page A38.
21. The District Director breached clause 16.1 and 16.2 of the ELRC Collective Agreement 1 of 2021, which simply put that should the HOD of the Department or the delegated authority decline the SGB recommendations, they must provide full motivation in writing for such deviations or call the SGB meeting to discuss such deviation and minute the decision of the meeting. The SGB wrote a letter to the District Director and to date the District Director failed to respond. (A13).
22. The reasons advanced by the SGB for his appointment was to ensure gender parity, to appoint strong male candidate (A14 and A15).
23. During cross examination the Applicant failed to respond to question that deals with clause 11.5 and 11.7 of the ELRC Collective Agreement 1 of 2021, which essentially indicated that candidates that do not meet the requirements of the advertisement should not be included in the preference list and that it was irregular to appoint a candidate that does not meet the advertisement requirement. (R116).
24. It was also put to the Applicant that it is incorrect that he was number 1 but was rather number 3 in terms of scoring whilst the Applicant was number 2 in terms of the scoring.

THE RESPONDENT’S CASE

  1. The Respondent called one witness, Mokgadi Portia Ramushu, who testified under oath that she is employed as HOD: Mathematics, Natural Science and Technology. She started working for the Respondent as a School Administrator on 01 July 2009. She studied teaching and completed her studies and started as a teacher on 01 March 2016. She obtained a Batchelor of Education, Intermediate and senior phase, specialising in Mathematics, natural science and technology and her languages are English and Sepedi. She taught Mathematics, Natural Science and Technology for a period of ten years to date.
  2. She met all inherent requirements of the advertisement as per R14, which are Mathematics, Natural Science and Technology. She was acting as a Department Head for two to three years for Natural Science and Technology. The advertisement required three subjects and she got those subjects and acted in providing leadership for two to three years in that field, therefore she was better qualified and competent to provide leadership in those three subjects.
  3. She was nominated for two years in a row and came second in National Teachers Awards for mathematics and science, during the year 2024 and 2025. Her application and her academic credential are on R80 and R81 and met all inherent requirements of the role, and thereby, the right fit for the job.
  4. Clause 16.1 of the ELRC Collective Agreement 1 of 2021 provided that despite order of preferences of the SGB, the HOD of the Department or the delegated authority is enjoined to appoint a suitable candidate on the list of interviewed candidates and not bound by the preferences of the SGB (R120).

ANALYSIS AND REASONS
Legal framework

  1. In determining this dispute, I have considered the LRA, the ELRC dispute resolution framework, in particular ELRC Collective Agreement 3 of 2016, and the relevant case law.
  2. Section 186(2)(a) of the LRA provides that unfair conduct by an employer relating to the promotion of an employee constitutes an unfair labour practice. It is, however, settled law that an employee does not ordinarily have an automatic right to promotion. What an employee is generally entitled to is a fair opportunity to compete for a post. The employee alleging unfairness bears the onus of proving, on a balance of probabilities, that the employer acted unfairly. The ELRC Collective Agreement 3 of 2026, clause F 31 equally provides that the Applicant bears the onus to prove an unfair labour practice on balance of probabilities.
  3. Section 23 of the Constitution and section 185 of the LRA recognise the right to fair labour practices. At the same time, the authorities make clear that adjudicators should be slow to interfere with an employer’s managerial prerogative in promotion and appointment decisions unless the decision was arbitrary, capricious, taken in bad faith, based on irrelevant or improper considerations, or otherwise unfair.
  4. Section 138(7) of the LRA requires a commissioner to issue an award with brief reasons. For that reason, I refer only to the evidence and arguments most material to the outcome, although I have considered the record and the parties’ written heads of argument filed on 11 May 2026 in full.

Evaluation of the evidence

  1. A central issue in this matter was whether the Applicant was the most competent, suitably qualified and meeting the inherent requirements of the post. Yes, it was not in dispute that the Applicant had amongst many subjects in his academic record, mathematics, but the advertisement required mathematics, natural science and technology. The successful incumbent met all those requirements. The Applicant was the preference of the SGB, but the Department is equally enjoined by the ELRC Collective Agreement 1 of 2021, Human Resources practices and good governance to appoint a candidate that meet the inherent requirement of the role.

34. There is no logical and factual connection between gender and strong leadership, and therefore some of the reasons advanced by the SGB to prefer the Applicant, male, because of ill-discipline in relations to late coming, are strange and goes against the grain of good governance. Males and females are competent to provide stable leadership.

35. The Respondent’s District Director provided sound reasoning for preferring the successful incumbent who met all inherent requirement of the post, had acting stint as Department Head on same subjects, and was a role model with regards to mathematics, natura science and technology after coming second on national teachers awards for two consecutive years. The successful incumbent was teaching mathematics, natural science and technology, whilst the Applicant, the SGB preference, was teaching Afrikaans and experienced on Afrikaans as a subject.

36. In the case of Sun International Management (Pty) Ltd v CCMA & Others (JR939/14) LC, the Court held that it is important to note that in these types of cases, it is also incumbent on an Applicant to show a causal connection between the unfairness complained of and the prejudice suffered. See National Commissioner of the SA Police Service V Safety & Security Sectoral Bargaining Council & others. Consequently, it is not sufficient just to show that there was a breach of protocol or procedures in the recruitment process. It is necessary also for the Applicant to show that the breach of the procedure unfairly prejudiced him. Accordingly, the question is whether but for the Respondent’s conduct, the Applicant would have been appointed.

37. In Cullen v Distell (Pty) Ltd (2001) 8 BALR 834 (CCMA) the Court held that: – “In drafting item 2(1) (b) of Schedule 7, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. A Commissioner’s function is not to ensure that Respondent choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates. The commissioner’s decision is whether the employer came to that decision in a fair manner. The employer’s decision must be procedurally and substantively fair. However, employees may have a valid complaint if they can show that they have been overlooked for promotion where they possess objective attributes, such as experience or qualifications, which the person who has been promoted does not possess, and their employers cannot explain why they were overlooked”.

38. When deciding what constitutes unfair conduct in the context of promotions, the issue of management prerogative remains of critical importance. In Provincial Administration Western Cape (Department of Health and Social Services) v Bikwani and Others, it was held as follows: ‘There is considerable judicial authority supporting the principle that Courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process’. The authorities cited in argument are relevant in this regard. It is not enough for an applicant in a promotion dispute to point to procedural imperfections. The applicant must also show a causal link between the unfairness alleged and the prejudice suffered. In other words, the evidence must demonstrate that, but for the impugned conduct, the applicant would have been appointed. On the evidence before me, that threshold was not met.

The evidence ultimately supports the conclusion that the successful incumbent’s appointment was more appropriate than the Applicant. The academic credentials, experience and achievements favour the successful incumbent.

Conclusion

39. Having considered the evidence as a whole, the arguments advanced, and the applicable legal principles, I find that the Applicant failed to discharge the onus of proving on a balance of probabilities that the Respondent committed an unfair labour practice relating to promotion.

AWARD
40. In the premises, I make the following award:

41. The non-promotion of the Applicant, Malangani Calvin Luthada, by the Respondent, the Department of Education: Gauteng Province, does not constitute an unfair labour practice by the Department of Education.

42. The matter is dismissed.

43. There is no order as to costs.