11 February 2026 – ELRC868-25/26NW

Case Number: ELRC868-25/26NW
Panelist: Thobela Obey Mqamelo
Date of Award: 11 February 2025

In the Arbitration matter between

Neo Makgakala
(Applicant)

And

North West Department of Education
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This unfair labour practice dispute with specific mention to promotion was set down for arbitration via the online platform (Microsoft Teams) at 09h00 on 26 January 2026. The Education Labour Relations Council (Council) hosted the proceedings.
The applicant, Neo Makgakala (Ms Makgakala) was present and represented herself, and the respondent was present and represented by Tumelo Bahurutse (Mr Bahurutse) the Assistant Director Labour Relations at the respondent.
Parties did not submit any bundles of documents.
Ms Neo Makgakala, and Mr Neo Malomane testified during the proceedings.
The evidence was tendered under oath.
The proceedings are digitally recorded

ISSUE TO BE DECIDED

I must determine whether or not the respondent, North West Department of Education committed any unfair labour practice related to promotion as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 against the applicant, Ms Neo Makgakala.

SUMMARY OF EVIDENCE
APPLICANT’S TESTIMONY
NEO MAKGAKALA

Ms Makgakala testified that she was employed at a Private School in Gauteng and on 04 September 2025 she got a call from Masimphane Primary School informing her that she has been short listed by the Department of Education in North West, and that interview is scheduled for 08 September 2025. She further testified that she arrived at the Masimphane Primary School, and was introduced to the SMT of the school as one of the people who had been short listed; that she is the only person who qualified for the position, and the Principal of the School informed her that she must not come to work until she receive an approval from the North West Department of Education.
The applicant testified that on 13 October she received a letter from the Principal of Masiphane Primary School (Mr Nkutueu Letswalo Cornelius), that the school has received the approval letter of the applicant’s appointment, and that the applicant can start working on 15 October 2025. It is the applicant’s submissions that she was introduced to the class of learners on the day. It is the applicant’s case that she was then alter informed that she must stop working as she does not qualify for the position.
I adopted an inquisitorial approach in order to understand the true dispute of the applicant. The applicant’s case is that her dispute is not premised on a promotion dispute but rather on that she was employed by the respondent and her services were unfairly terminated by the respondent.

APPLICANT’S SECOND WITNESS
NEO MALOMANE

He testified that he worked with the applicant, and was informed by the applicant that she got a position as a Post level 1 Educator at the North West Department of Education. It is his testimony that the applicant’s employment was unfairly terminated.
The respondent did not call any witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENT

Section 186(2) of the labour Relation Act 66 of 1995 (LRA) defines an unfair labour practice to mean: ‘’any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation, (excluding disputes about dismissals for reasons relating to probation) or training of an employee or relating to the provision of benefit to an employee;
(b) the unfair suspension of or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to re-instate or re-employ a former employee in terms of an agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000) on account of the employee having made a protected disclosure as defined in that Act’’.
The fact that the respondent did not call any witnesses in this matter does not automatically means the applicant must succeed in the matter. It is trite that the onus of proof rest on the applicant to prove the unfair labour practice. The applicant’s testimony must be relevant, reliable and must be the most probable version.
Under cross examination, the applicant conceded that she was not an employee at the time of applying for the Post Level 1 Educator position at the respondent, and she did not receive an appointment letter from the respondent. She did meet the requirement for the Post Level 1 Educator position.
It is clear for the definition in LRA section 186(2) that an unfair labour practice can only occur in an existing employment relation between an employer and an employee. It this matter is has been proved by the applicant’s own testimony that she was a job applicant seeking employment and not promotion. The question whether an employment relation was created or not and or whether the applicant’s employment was unfairly terminated cannot be determined under the dispute referred in terms of section 186(2) of the LRA as an unfair labour practice dispute relating to promotion.
There is no probative value to attach to the evidence of Mr Malomane, everything that he testified was about what he heard from the applicant. He is not an employee of the respondent. He did not testify on anything new, and or relevant to the dispute at hand.
The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus on a balance of probabilities. I am satisfied that the Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly the Applicant’s claim must be dismissed.
The applicant is not entitled to relief.

RULING