IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No. ELRC 1442-25/26 EC

In the matter between

NAPTOSA obo TANTASWA PRISCILA SIKITI APPLICANT

and

EDUCATION DEPARTMENT OF EASTERN CAPE FIRST RESPONDENT

THANDIWE LITYE SECOND RESPONDENT

PANELIST: YOLISA NDZUTA

LAST HEARD: 11 August 2026

DATE of AWARD: 10 September 2026

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

SUMMARY: Whether the First Respondent has committed an act of unfair labour practice against the Applicant during the recruitment and appointment of the Second Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS

1. The matter was heard on several days. The proceedings commenced on the 11th of June 2026 and was concluded on the 11th of August 2026.
2. The applicant was represented by Mr Aaron Mhlontlo of NAPTOSA whilst the first respondent was represented by Mr Toto Tsheko and the second Respondent was represented by Mr Andile Nogwebeza from SADTU.
3. The applicant filed a substantial bundle of evidence which was relied upon by all parties and written submissions too, these will be further addressed later in the award.

THE ISSUES IN DISPUTE

4. I am to determine whether the First Respondent had committed an act that constitutes an unfair labour practice as alleged by the Applicant when the Applicant was not shortlisted during the recruitment of post number 460413 to which the second Respondent was subsequently appointed in.

BACKGROUND

5. In these proceedings the Applicant referred a dispute pertaining to the alleged unfair labour practice relating to the first Respondent failing to shortlist her when she was a better candidate than the second Respondent who was ultimately appointed.
6. The Applicant is an employee of the first respondent.
7. The Applicant’s dispute specifically pertains the recruitment process and appointment of the second Respondent into the principal vacancy.

SURVEY OF EVIDENCE AND ARGUMENT

8. Seeing that the nature of the dispute herein is one of an alleged unfair labour practice, the Applicant bears the onus to prove that same unfair labour practice exists in her dispute in terms of section 186(2) of the Labour Relations Act 66 of 1995. On account of the latter, the Applicant shall lead its case first then the Respondents shall follow in opposition.
9. The Applicant called one (1) witness and filed a bundle enclosing several documents. There was no dispute raised against the contents of the bundle thus same was adopted on the basis that the documents are what they purport to be. The summary of the aforementioned witnesses is enclosed hereinbelow.
10. The Applicant testified in support of her case and her evidence can be summarized as follows:

10.1 She is an educator permanently appointed by the first Respondent since 1993. She currently occupies the role of Deputy Principal at Lujiza Primary School which she has occupied since 2023;

10.2 She has acted in the role of Principal of Lujiza Primary School during the 2024 and 2025 academic years until the second Respondent was appointed as the principal in April 2026.

10.3 In 2007 she was promoted into the HOD post within Lujiza Primary School. During her employment Lujiza Primary School she studied further and acquired several qualifications and certificates including Education Management acquired in 2000 from University of Pretoria & Certificate of Leadership acquired in 2016 from University of Stellenbosch.

10.4 When the post of principal for Lujiza Primary School (post number 460413) was advertised per bulletin 4/2025, she applied for same post because she met the requirements of the post as advertised and owing to having occupied a management position in the school for more than eighteen (18) years. Furthermore, she had acted in the principal vacancy for a period exceeding twelve (12) months.

10.5 Upon consideration of B.5.3 of the PAM Document, she ought to have at least been shortlisted during the sifting of the same post.

10.6 The first Respondent has a Recruitment and Selection Policy while being subject to the ELRC Collective Agreement 1 of 2024 of the Eastern Cape which further advises on how the first Respondent must conduct its recruitment process including consideration of applications of prospective applicants.

10.7 On consideration of the second Respondent’s job application for the post vis a vis the application of the applicant for the same post, there are material discrepancies which plagued the application of the second Respondent. The consequence of the latter discrepancies ought to have resulted in the sifting out of the second Respondent. Furthermore, on proper application of the aforementioned guidelines, the sifting out of the Applicant was irrational.

10.8 Upon consideration of the second respondent’s curriculum vitae filed, she failed to even satisfy the sifting criteria imposed by the panel.

10.9 Furthermore, when one juxtaposes her (the applicant’s) CV with that of the second respondent, she (the applicant) had more experience and was better qualified for the post than the incumbent (the second respondent).

10.10 It was disappointing to learn that she had been sifted out by the panel in contravention to clause B.5.6.7 of the PAM document considering that she had acted in the vacancy for a period exceeding twelve (12) months when one considers her acting letters and the permission of the first respondent for her to remain as the acting principal until the appointment of the second respondent.

10.11 On consideration of the panel’s sifting criteria and minutes together with the sifting report, she (the applicant) satisfied each criteria imposed yet she was sifted out and had not been advised on application of which criteria was her application ultimately sifted out.

10.12 The appointment of the second respondent was irregular given that her application was not compliant and owing to her (the second respondent) not being the better candidate in comparison.

10.13 Owing to the conduct of the first respondent in its recruitment and filling of post number 460413, she (the applicant) was prejudiced and same constituted an unfair labour practice as she was not given a fair opportunity during the filling of aforementioned vacancy. She sought to be compensated for the harm suffered in that regard.

11. The above witness was subject to cross-examination by the Respondents, and the following was ascertained therefrom:

11.1 When asked which document between the PAM document, Recruitment and Selection Policy and the ELRC Collective Agreement 1 of 2024 takes precedent, the applicant testified that the latter documents are equally important when addressing recruitment as they all interlink and are inter-related.

11.2 When asked whether she had acted for a complete twelve (12) months in the same post and under the same post, she testified that she had acted initially for six (6) months in 2024 then acted for a further 6 months during the academic year of 2025 which continued in 2026 until the second Respondent. It was put to the applicant that the period she claimed was for two different posts considering that there were two different recruitment processes per post and each post enjoyed a unique post number. It was also put to the applicant that the period of acting claimed must be separated to each post considering that each post was unique and was filled. Her response was that the filling of the post did not disrupt her period.

11.3 It was put to the applicant that her calculation of acting during the current advertised post was incorrect. Also in the reading of clause B.5.6.7 of the PAM Document in relation to post number of vol 4/2025 she did not satisfy the requirement that protected her shortlisting therefore she ought to have been subjected to the sifting process with other applicants.

11.4 It was further put to the applicant that she had been shortlisted during the 2024 recruitment whilst during the 2025 recruitment she had been sifted out. Her response thereto was that the post remained the same regardless of the post number issued when the post was advertised in the bulletin. On account of the latter together with the setting aside of the appointment in 2025, she acted on the same post therefore the periods should be read in conjunction.

11.5 When asked about criteria relating to the minimum years required as a deputy principal being five (5) years and that was the reason she was sifted out, she (the applicant) testified that according to the sifting minutes and the sifting report, there was no requirement raised about an applicant having been required to be a principal or deputy principal at the time of application.

11.6 When referred to the specific periods within her appointment letters, she testified that the second acting stint of 2025 was extended by the first Respondent by agreement to proceed until the appointment of the second Respondent. The applicant conceded that an appointment letter was not issued for the extension of her acting during 2026 (from January 2026 until March 2026).

11.7 When it was put to her why she continued to act in the absence of the appointment letter in 2026, she responded that it was an agreement and following a direction of the circuit manager. She regarded her acting period as legitimate because the educational needs of the learners and the operational needs of the school superseded the need for formal appointment letter.

11.8 When asked about the manner in which she completed her form, she responded to state that in the absence of a testing metric (a language required) she completed the form with “not applicable” to avoid placing the incorrect key also considering the limitations related to the form. She maintained that she had completed the form in compliance with the requirements.

12. The first respondent called three witnesses, Ms Ntombizanele Dyumdyum, Ms Thembela Khenke and Mrs Vuyolwethu Mduduma. Ms Dyantyi who testified as follows:

12.1 She is a member of the School Governing Body at Lujiza Primary School and was a member of the panel that recommended the appointment of the second Respondent.

12.2 The principal post that was ultimately filled by the second Respondent was advertised twice, firstly in July 2024 then again in July 2025. The applicant had acted in the post during both periods when the position was being advertised.

12.3 Following the appointment of Mrs Ntintelo in 2024, a dispute was raised at the ELRC which resulted in her (Mr Ntintelo) appointment being set aside then the post was advertised again.

12.4 During the shortlisting of prospective candidates, the panel sat, arranged the various applications then agreed upon various sifting criteria to help identify the five (5) best candidates who would be interviewed. The first prospective candidates sifted out were those who had not occupied a position of deputy principal, then they sifted out according to qualification and experience. The panel was assisted by the educator component to assist in identifying those prospective candidates who were PL1 vis a vis those who were PL2 therefore they had sifted out any applicant who occupied a position of HOD and below therefore to only be left with deputy principal and principal prospective candidates.

12.5 She could not recall the implementation of criteria 2 to 5, however she formed part of the panel that sifted the various job applicants/prospectives.

12.6 The applicant was sifted out because she did not meet the requirement of having 5 years’ experience as a principal or deputy principal.

12.7 Also, upon calculation of the period that the applicant had acted, she did not meet the twelve (12) month requirement of the PAM document in order to be automatically shortlisted.

13. The above witness was subject to cross-examination by the applicant, and the following was ascertained therefrom:

13.1 On the day of sifting out prospective candidates, the bulletin and advertisement for the post was considered. The post advertisement did not mention the criteria raised by the panel to sift out applicants/prospectives.

13.2 The various curriculum vitae of the applicants/prospectives were perused by a different member of the panel therefore any errors committed in the analysis thereof would have to be put to that member. During cross-examination she conceded that the applicant’s curriculum vitae together with her application form ought to have been analysed better.

13.3 She conceded that the second respondent’s application was considered incorrectly in that the experience as a principal was miscalculated.

13.4 She conceded that there were errors in the application of the criteria on proper consideration of the applicant’s curriculum vitae and application form vis a vis that of the second respondent. She testified that she did not personally interact with the various cv’s as there were other panellists who executed the function of analysing cvs.

14. Ms Thembela Khenke testified as follows:

14.1 She is an educator of Lujiza Public School and she is a member of the SGB in the capacity of the secretary.

14.2 She formed part of the panel that ultimately appointed the second respondent during same process she drafted the minutes as the secretary.

14.3 There was an error in the typed sifting minutes as her hand written minutes were far more detailed.

14.4 The panel first sifted out all prospective candidates who were PL2 and below as they were occupying HOD and lower positions. Thereafter they sifted out based on experience (5 years or more) as a principal or deputy principal and based on qualifications.

15. The latter witness was subjected to cross examination, and the following can be deduced therefrom:

15.1 The witness rejected the accuracy of the typed sifting minutes as she had prepared handwritten minutes although her signature appeared on the typed minutes after she had perused same. She confirmed that she understood the gravity of her signature on the minutes.

15.2 She testified that during sifting, upon application of criteria 2 to 5, they (the panel) sought to sift out applicants with less than 5 years’ experience as a deputy principal and principal. When confronted with the fact that the second respondent failed to meet that criteria she conceded that there was a calculation error by the panel in applying this criteria to the second respondent.

15.3 When asked about the sifting report criteria vis a vis the application and cv of the second respondent, she conceded that upon application of the criteria properly she (the second respondent) ought to have been sifted out too.

15.4 She conceded that according to the qualification criteria and upon application of same criteria on the second respondent vis a vis the applicant, the second respondent should have been sifted out.

15.5 When asked about the Applicant’s CV vis a vis the CV of the second respondent, she refused to testify about same.

16. The respondent also called Mrs Vuyolwetu Mduduma as a witness, the summary of her evidence is herein below.
    16.1 She is an educator and a SGB member of the first Respondent. She was involved in the recruitment of the post that was filled by the second Respondent.

16.2 The applicant had acted in the vacancy occupied by the second Respondent on two occasions firstly in 2024 then the post was filled by Mrs Ntintelo whose appointment was later set a side then again in 2025 until the second respondent was appointed.

16.3 During the 2024 recruitment, the applicant was shortlisted upon application of the criteria imposed by the sifting panel of then.

16.4 The applicant had not acted for more than twelve (12) months therefore did not meet the requirements of B.5.6.7 of the PAM document.

16.5 During the sifting of the post number 460413 the various sifting criteria was applied and applicants/ prospectives were eliminated until the five (5) that were interviewed was established. There was a time when it was enquired as to why HOD’s were excluded considering they are PL2, the panel insisted that it wanted to focus on interviewing applicants/ prospectives who were deputy principals or principals.

17. The latter witness was subjected to cross examination, and the following can be procured therefrom:
    17.1 The sifting criteria were not part of the post job requirements as advertised in the bulletin.

17.2 PL1 and PL2 applicants/ prospectives were sifted out because the panel wanted to focus on interviewing applicants/ prospectives who were deputy principals or principals for the post. The latter was not part of the bulletin which can be construed as unfair to all applicant/ prospectives. She conceded that the panel requirement/criteria was irrational as it was not based on experience or qualification. She concede that PL2 enjoyed management experience.

17.3 She conceded that the second Respondent ought to have been sifted on proper application of criteria 2.

17.4 Confirmed that the panel understood leadership to be inclusive of management which may have been an incorrect assumption. The incorrect assumption mislead the panel in their decision as it relates to the execution of sifting in terms of criteria 2. On consideration of the Bed curriculum and the modules thereof, some academic aspects cover the criterion required.

17.5 She testified that regardless of the second respondent failing to meet criteria 3 insofar as the years of experience required as a principal, the inclusion of the second respondent was justified given her years within management. However, when confronted with a question of the misapplication of this criteria towards the second respondent, the witness could not answer.

17.6 She testified that during the sifting, the CV of the second respondent was not handled or analysed by her.

17.7 She testified that the applicant had not completed the form properly,thus it would have sifted her application out.

18. At the conclusion of the witness testimony, the parties were directed to file closing submissions in support of their respective arguments, which were filed on 21 August 2026. I shall hereinunder summarise the closing arguments .
19. The applicant argued that:

19.1 The applicant believes that correct and proper procedures were not followed in appointing the 2nd respondent Mrs. Thandiwe Litye.
19.2 The application form of the 2nd respondent has gaps, and the following paragraphs were noted and not disputed: 16, columns 5,6; 20,9; 20.10;21.3;21.3;21.4; 24.2; 27.1; 27.4; 27.5. This is not consistent with the provisions of the Revised PAM of 09 September 2022 which state that “B.5.3.1.2 Clearly indicating whether the application is complete or not.”
“B.5.3.3.3 Names of the educators who have not met the minimum requirements for the post in the terms of the advertisement.”
19.3 The above discrepancy which was deliberately ignored by the panel and HR sifting process when they handled the elimination process is also not consistent with the provisions of the Recruitment and Selection Policy/Processes which states that “applications and procedure that the application forms must be completed in full”. The application form of the 2nd respondent thus enclosed incorrect information.
19.4 Had the sifting and shortlisting processes been done correctly and thoroughly, the 1st respondent would have taken note of clause 3.4 therefore the 2nd respondent’s application would have not been considered for shortlisting. The applicant suffered a form of prejudice at the sifting stage when the incomplete form of the 2nd respondent was deliberately ignored by HR personnel when the other form was eliminated because it was not complete. If sifting was done thoroughly the 2nd respondent would not have proceeded to the shortlisting stage.
19.5 Furthermore, while the Applicant met the sifting criteria imposed, the Second Respondent did not. That notwithstanding that the applicant acted in the advertised post for two consecutive terms of 6 months each which in terms of clause B.5.6.7 of PAM which states that “An educator who has been acting in the advertised post for 12 months or more and has applied for the post must be shortlisted”
19.6 ELRC Collective Agreement 3 of 2016, states that “where an applicant is unable to prove that he was the best candidate of all the candidates who applied for the post, then for the employee to prove an unfair labour practice, he or she should generally at least demonstrate that there was a conduct that denied him or her a fair opportunity to compete for the post or the conduct was arbitrary or motivated by unacceptable reasons, or that the successful candidate was dishonest or misled the panel or the employer.”
19.7 Arguing Noonan v SSSBC and others [2012] 33 ILJ 2597(LAC) which emphasised that “Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. Suppose an Employee is not denied an opportunity to compete for the post. In that case, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason “, the Applicant argued that……
19.8 Arguing Minister of Defence and Military Veterans v Motlanthe (2012) ZACC 36, wherein the Constitutional Court emphasized that “procedural fairness is a core component of administrative justice. The Court held that an administrative decision made without following fair procedures is fundamentally flawed, even if the outcome appears to be just or beneficial”, the Applicant argued that procedural fairness is a fundamental aspect of constitutional rights to administrative justice and must be observed in all administrative actions that affect individuals’ rights or legitimate expectations. It further underscored that failure to follow fair procedures can invalidate decisions, regardless of the substantive merits.
19.9 Applying the principle Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) to the context of educator promotions, any irregularities—such as not following prescribed processes, failing to document decision-making criteria, or conducting biased or opaque interviews—can render the promotion processes unfair and unlawful. Such procedural irregularities undermine the legitimacy of the appointment and can be challenged on constitutional grounds, emphasizing that procedural fairness is essential for ensuring substantive fairness in employment decisions.

20. The first Respondent argued as follows in its closing submissions:
    20.1 Although the Applicant met the minimum requirements of the post, meeting the same requirements of an advertised post does not, by itself, create an automatic entitlement to be shortlisted.

20.2 The SGB met and adopted criteria for purposes of determining which qualifying candidates would proceed to the next stage of the recruitment process. Post Level 1 educators and Departmental Heads were sifted out initially therefore leaving candidates occupying the higher management levels, including Deputy Principals and Principals. The managerial-experience criteria was then applied to the candidates remaining in the process.
20.3 Although much debate was raised regarding the sifting and shortlisting minutes, the secretary explained that the reference to managerial experience was intended to apply to the management levels remaining after Post Level 1 educators and Departmental Heads had already been eliminated during the earlier stage. While the minutes could perhaps have been more explicit, an imperfect recording of a criterion does not,, establish that the criterion was unfair or deliberately formulated to exclude the Applicant.
20.4 There was no evidence that the criterion was created after the Applicant’s identity became known, nor was there evidence of discrimination, bad faith, personal animosity or an ulterior motive. The Applicant therefore has not established that the shortlisting criterion was designed or applied for the purpose of unfairly excluding her.
20.5 The Applicant’s argument against the Second Respondent’s experience being less than a criterion set during sifting and shortlisting was explained by SGB and the only issue that remains is the miscalculation by the sifting and shortlisting panel. However, an alleged error or inconsistency in calculating experience does not automatically amount to an unfair labour practice. The Applicant must establish more than an imperfection in the process. She must demonstrate that the process was unfair and that the alleged unfairness caused her prejudice.
20.6 There was no evidence that the SGB deliberately relaxed the criterion for the incumbent while deliberately applying a different criterion to the Applicant. More importantly, even if the Applicant had been shortlisted, she would still have had to compete with the other shortlisted candidates.
20.7 The Applicant has consequently failed to establish the necessary causal connection between the alleged inconsistency and the prejudice upon which her claim is based
20.8 The applicant misapplies clause B.5.6.7 PAM because that provision does not create a general right of automatic shortlisting for an employee who has accumulated periods of acting service over different recruitment processes. The Applicant’s two acting terms cannot be aggregated to meet clause B.5.6.7 PAM. Had the Applicant completed twelve months of acting in the advertised post before the relevant advertisement, the PAM provision would have been applicable.
20.9 Also, the applicant was shortlisted during the recruitment of the same post in 2024 which unfortunately following a dispute declared, the final appointment of the incumbent was set aside. The Applicant’s previous shortlisting does not create a permanent entitlement to be shortlisted in every subsequent advertisement for the same post. Similarly, her previous acting service does not create an automatic-shortlisting entitlement where the twelve-month requirement had not been satisfied before the subsequent advertisement.
20.10 The Applicant failed to establish that the conduct complained of constituted an unfair labour practice relating to promotion and if one applies the notion from Pamplin v Western Cape Education Department and Others [2018] ZALCCT 13, the Applicant’s case fails because there is no causal connection between the alleged unfair conduct and the prejudice suffered by the Applicant. Furthermore, there is no evidence that the Applicant would necessarily have been appointed had she been shortlisted.

ANALYSIS OF THE SUBMISSIONS

21. As stated above, the parties filed written submissions in support of their respective cases.
22. The applicant referred an unfair labour practice as per section 186 (2)(b) of the LRA in relation to promotion / appointment regarding the first Respondent’s failure to shortlist her.
23. The applicant argue that the employer committed an act of unfair labour practice in that firstly she was the better candidate when compared the second Respondent and secondly because on application of the sifting criteria, the second Respondent failed to satisfy all the shortlisting requirement thus her inclusion in the interview shortlist and subsequent appointment was irregular. The applicant also argued that the applicant was the victim of an improper interpretation and application of the PAM document read with Recruitment and Selection Policy and the ELRC Collective Agreement 1 of 2024. The latter was argued as a furtherance of the many administrative errors which plagued the decision of the first Respondent and ought to have been considered when the second Respondent was appointed.
24. The respondent argues on the other hand that the Applicant has failed to prove that the Department acted unfairly or unlawfully in that no causal link has been established between any administrative error and the harm she may have experienced.
25. The respondent argued also that Applicant did not meet the requirements for an statutorily imposed shortlisting per B5.6.7 of the PAM document.
26. The Respondent argued that the applicant together with the second Respondent were subjected to the same process as all the other prospectives who responded to the post as such the criteria were equally applied.
27. The above submissions were considered in terms of the applicable law hereinbelow.

APPLICATION OF LAW TO THE SUBMISSIONS

28. It is worth emphasising that “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
    unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
29. The long and short of the applicant’s dispute pertains the application of the sifting and shortlisting criteria vis a vis the post requirements as advertised.
30. The introduction of sifting and shortlist requirements is an accepted part of recruitment which each job applicant or prospective ought to expect. The issue arises if the sifting and shortlist is done contrary to the job requirement in that it is a complete diversion therefrom. In the matter Health & Other Service Personnel Trade Union of South Africa & others v Member of the Executive Council for Health, Eastern Cape & others (2017) 38 ILJ 890 (LAC) the labour court emphasised that sifting and shortlisting criteria must strictly align with the requirements published in the job advertisement. Introducing hidden, unadvertised, or contradictory criteria during the shortlisting phase can constitute an unfair labour practice or an irregular recruitment process. The court also highlighted that employers adhere to their own selection requirements when selecting prospective candidates in relevant advertised posts, failing which humble pie will be the order of the day as the advertisement and selection process may have to be revisited afresh.
31. On consideration of the latter case law and its application to the facts of this case, it is clear that the experience and qualification requirements introduced during sifting expanded on the advertised job requirements. We therefore must now decide on the application of the sifting requirements on the applicant juxtaposed to the second respondent. On the evidence of the first respondent’s witnesses, it is clear that the sifting was applied prejudicially (albeit claimed as an error) against the applicant to the favour of the second Respondent. It cannot be ignored that the witnesses of the first respondent had also testified that on proper application of the criterion they would have also sifted the applicant out.
32. I must emphasise that the applicant’s dispute is reliant on PAM document read with Recruitment and Selection Policy and the ELRC Collective Agreement 1 of 2024 which specifies the requirements and directives applicable in recruitment. Therefore in addressing the applicant’s dispute in relating to the statute applicable, one must bear in mind the dictum of Stokwe v Member of the Executive Council: Department of Education, Eastern Cape and Others (CCT33/18) [2019] ZACC 3; wherein the court reiterated that an employer—specifically state organs like the Department of Education—cannot escape accountability, bypass procedural fairness, or ignore its own collective agreements and statutory obligations by relying on its own administrative failures or internal non-compliance.
33. An argument was raised that the applicant failed to establish a causal link between an administrative error of the first Respondent and the harm claimed. To that the applicant argued that owing to the action of the first Respondent, she endured harm because it emphasised that owing to the decision of the first Respondent she (the applicant) was denied an opportunity as such she relied upon ELRC Collective Agreement 3 of 2016 in that regard.
34. The applicant argued that the first Respondent’s conduct towards her relating to the improper application of the sifting criteria constituted ill-treatment which was grossly unfair. Granted it is true and as was emphasised in Reeflords Property Development (Pty) Ltd v De Almeida [2022] 6 BLLR 530 (LAC), there must exist a nexus between the unfairness claimed and the relief sought. The fundamental principle is that the unfairness triggers the legal remedy if same legal remedy is entitlement that exists.
35. It was argued that in establishing the nexus between substantive and procedural unfairness together with a claim for compensation the applicant was obliged to have satisfied the requirements necessarily entitling to the compensation. Understandably in terms of section 193(4) of the Labour Relations Act a commissioner may in unfair labour disputes issue an award which includes a corrective action however same must be within the confides of law and what is sought by applicant. The applicant in this matter referred a dispute alleging unfairness relating to appointment and she established the unfairness of the conduct by the first respondent and same unfairness does relate to an aspect identified within section 186(2) of the Labour Relations Act 66 of 1995.
36. The applicant sought compensation of twelve months and argued that was reasonable compensation. In determining such, I am directed by the case of Hoffmann v South African Airways (CCT17/00) [2000] ZACC 17; where the court determined that that the determination of appropriate relief calls for the balancing of various interests that might be affected by the remedy. The latter is guided by various objectives including addressing the wrong resulting from the infringement; deterring future violations; making an order that can be complied with; imposing fairness to all affected; To take into account the nature of the right infringed and the nature of the infringement itself.
37. Having due regard to the latter and the concessions of the Respondent throughout this case, it is evident that the nexus between the Applicant’s loss (harm per transgression of her rights) and the Respondent’s conduct. Now in furtherance of the former case law principle, it only just that an appropriate outcome follow as a remedy for the Applicant’s loss. The latter is emphasised by the fact that in protection of the best interest of the child principle, it would be best to avoid an interruption of the school’s operations and the learning conducted therein by granting a more suitable award.
38. In the premise of the above I make the following award.

AWARD

39. The applicant has discharged her duty to prove that an unfair labour practice was committed by the first Respondent relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995.
40. The applicant is granted relief of six (6) months compensation as just and equitable.
41. The first Respondent is directed to compensate the Applicant an amount of R351 553, 50 which equates to 6 months of the entry notch (R58 592.25) of the post in question. The latter amount must be paid within three months of this award.

Yolisa Ndzuta
Panellist: ELRC