Panellist: Khuduga Tlale
Case Reference No.: ELRC1282-25/26EC
Date of award: 12 August 2026

In the matter between:

Nothekanti Grace Kgosana Applicant

And

Department of Education – Eastern Cape 1st Respondent

Xoliswa Beatrice Stemela 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Nothekanti Grace Kgosana (“applicant”) and Department of Education – Eastern Cape (“1st respondent”) and Xoliswa Beatrice Stemela (“2nd respondent”) was held on 27 July 2026 at the 1st respondent’s offices in Maletswai. The applicant appeared in person, and Ms. N Holby, NAPTOSA full-time shop steward, represented her. Mr. G Sigojo, Circuit Manager, represented the 1st respondent. The 2nd respondent appeared in person, and Ms. N Nkuse, SADTU full-time shop steward, represented her.
2. This proceeding was conducted in English, and was digitally, and manually recorded. The parties agreed to submit the written heads of argument on Monday, 03 August 2026.

Issues to be decided

3. The issue in dispute is whether an unfair labour practice was committed against the applicant when she was not shortlisted for the position of Deputy-Principal (PL3) at Ethembeni Senior Secondary School at Joe Gqabi District. Background to the dispute
4. The 1st respondent advertised the position of a Deputy-Principal (PL3): Consumer Studies or Tourism at Ethembeni Senior Secondary School with post reference number volume 2 of 2025, post number 505 with closing date of 14 June 2025. The applicant and 2nd respondent applied for the said position. The applicant was an educator (PL1) with 30 years of teaching experience when applying for this position. The 2nd respondent was an educator (PL1) with 27 years of teaching experience when applying for this position.
5. The applicant was not shortlisted, but the 2nd respondent was shortlisted, interviewed, and promoted. The advertisement required a candidate with Tourism or Consumer Studies, for grades 8-12. The applicant does not have both subjects, but she was teaching Tourism for ten (10) years. The 2nd respondent was having Home Economics. The 2nd respondent was joined as a party to the proceedings.
6. The applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“ELRC”) alleging that her non-shortlisting was both procedurally, and substantively unfair. She sought protective promotion or the selection process be re-done. The dispute was not resolved at conciliation, and it was referred for an arbitration. The parties submitted bundle of documents, and were marked bundle “A”, “B” and “R”.

Summary of Evidence

THE APPLICANT’S EVIDENCE

First Witness: Ms. Nothekanti Grace Kgosana

7. The witness testified under oath that she was the applicant in this matter. Her major subjects were Biology and Afrikaans. She testified that Afrikaans was phased out at the school in 2016, following which she commenced teaching Tourism in Grades 10 to 12. She attended Tourism workshops conducted by the 1st respondent and served as a Grade 12 Tourism marker from 2017 to 2024. She further testified that her learners achieved a 100% pass rate in Tourism. It was her evidence that the School Governing Body ought to have accommodated her in the disputed position. She alleged that the 2nd respondent submitted her application for the disputed position after the closing date. She referred to document “R27”, being the 2nd respondent’s application form dated 30 May 2025. She later testified that she submitted her application together with the 2nd respondent and contended that the selection process was unfair.
8. Under cross-examination by the 1st respondent, she testified that the advertisement required candidates to possess Tourism or Consumer Studies. She maintained that she qualified to be shortlisted because she was teaching Tourism. She confirmed that the advertisement did not expressly require candidates to have taught the subject. She later conceded that, despite teaching Tourism, she did not possess either Tourism or Consumer Studies and, accordingly, did not meet the inherent requirements for the disputed position. She further testified that she had no knowledge of the shortlisting criteria.
9. Under cross-examination by the 2nd respondent, she confirmed that her major subjects were Biology and Afrikaans. She maintained that she ought to have been shortlisted on the basis that she was teaching Tourism.
10. Under clarity questions, she testified that she was not disputing the promotion of the 2nd respondent. Her dispute was limited to the fact that she was not shortlisted for the position. She conceded that she does not possess Tourism or Consumer Studies. She confirmed that the 2nd respondent was shortlisted whereas she was not.

THE 1ST RESPONDENT’S EVIDENCE

First Witness: Ms. Xoliswa Beatrice Stemela

11. The witness testified under oath that she was the 2nd respondent in this matter. Her major subject was Home Economics, which she commenced teaching in 2003. She testified that the disputed position required candidates to possess Tourism or Consumer Studies and that she possessed Consumer Studies. She further testified that Home Economics was phased out in 2006 and replaced by Consumer Studies and Hospitality as part of the curriculum changes introduced by the 1st respondent.
12. The 2nd respondent’s representative indicated that she had no questions for the witness. The 2nd respondent’s representative was cautioned regarding her decision and the implications thereof but maintained that she had no questions.
13. Under cross-examination, she confirmed that document “R37” was her affidavit dated 31 July 2025 and that the closing date for applications was 14 June 2025. She testified that she submitted her application before the closing date and that the 1st respondent requested her to submit a clearer affidavit, which explains why it bears the date of 31 July 2025. She denied the allegation that she was afforded preferential treatment and testified that she had no knowledge as to whether other candidates were similarly afforded an opportunity to submit outstanding documentation.
14. Under clarity questions, she testified that candidates were required to possess Tourism or Consumer Studies. She confirmed that document “R38” constituted her academic records reflecting that she majored in Home Economics. She explained that curriculum changes resulted in Home Economics being replaced by Consumer Studies and Hospitality. She further testified that she submitted an affidavit because she did not have her academic records available when she applied for the position. She had no knowledge whether other candidates were requested to submit outstanding documents. Second Witness: Ms. Pumla Mayongo
15. The witness testified under oath that she was employed by the 1st respondent as a Subject Advisor for Consumer Studies, Hospitality, and Tourism. She testified that there was no substantive difference between Home Economics and Consumer Studies, as Home Economics was the previous syllabus that was subsequently changed to Consumer Studies. She further testified that Tourism was introduced as a new subject in 2006, while Hospitality formed part of the former Home Economics curriculum.
16. Under cross-examination by the 2nd respondent, she testified that the applicant specialized in Afrikaans and Biology.
17. Under cross-examination by the applicant, she testified that the curriculum changes occurred in 2006 and that Home Economics incorporated both Hospitality and Consumer Studies. She confirmed that document “R38” was the 2nd respondent’s academic record.
18. Under clarity questions, she testified that Home Economics was the subject taught prior to 2006 and that it was subsequently replaced by Consumer Studies and Hospitality. Following the curriculum changes, Home Economics gave rise to two subjects, namely Hospitality and Consumer Studies. She explained that Hospitality covers the subject matter in greater detail, whereas Consumer Studies addresses it less. She reiterated that both Hospitality and Consumer Studies originated from Home Economics. THE 2ND RESPONDENT’S EVIDENCE
19. The 2nd respondent’s representative indicated that they would not be leading any evidence. The 2nd respondent’s representative was cautioned regarding that decision and the implications thereof but maintained that they would not be presenting any evidence.

Survey of Argument

THE APPLICANT’S ARGUMENT

20. The applicant’s representative submitted that the applicant challenged the fairness, legality, and procedural integrity of the shortlisting process that prevented her from being considered for appointment. The applicant met the requirements but she was excluded from the shortlisting. Home Economics syllabus was effectively divided into two distinct learning areas; Consumer Studies and Hospitality.
21. Home Economics cannot automatically be regarded as a Consumer Studies qualification. The 2nd respondent was shortlisted despite equally lacking the required qualification in Consumer Studies. The 2nd respondent’s application was supplemented after the closing date, and that undermines the integrity of the process. The 1st respondent failed to provide satisfactory explanation for post-closing affidavit, missing original affidavit, inconsistent qualification standards, and preferential treatment afforded to the 2nd respondent. This process was tainted by material irregularities. The applicant sought the disputed position be re-advertised, or protective promotion.

THE 1ST RESPONDENT’S ARGUMENT

22. The 1st respondent’s representative submitted that all the candidates must met the requirements of the advertised position before they could be shortlisted. In this matter, the applicant did not meet the disputed position requirements. The applicant did not possess both Consumer Studies or Tourism. The applicant failed to prove during the proceedings that she qualified to be shortlisted. The 2nd respondent met the disputed position requirements. The applicant was not prejudiced during the shortlisting process because she did not meet the post requirements. THE 2ND RESPONDENT’S ARGUMENT
23. The 2nd respondent’s representative submitted that the 2nd respondent teaches Home Economics which is now called Consumer Studies. The teacher in Home Economics are deemed qualified to teach Consumer Studies. The applicant does not have Consumer Studies or Tourism. The applicant dispute must be dismissed.

Analysis of evidence and arguments

Introduction

24. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is 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 benefits to an employee.

25. The dispute before me relates to an alleged unfair conduct by the 1st respondent relating to promotion. In promotion disputes, the applicant bears the onus to prove that the 1st respondent’s conduct was unfair. On the other hand, the 1st respondent, is in the same token, obliged to defend challenges on the substantive, and procedural fairness, if it wishes to avoid a negative outcome.
26. Promotion is an area of managerial prerogative unless the applicant can prove bad faith, or improper motives. It is not the commissioner’s function, or responsibility to choose the best candidate for promotion for the 1st respondent, but simply to ensure that in selecting candidates for promotion, the 1st respondent does not act unfairly. All that the 1st respondent was required to do in these proceedings were to show that it had a rational basis for its decision.
27. Section 138(7)(a) of the Act enjoins me to provide brief reasons for my findings.
28. It is clear from the testimony of the applicant that her complaint is two-fold. Firstly, she takes issue with the 2nd respondent being shortlisted as she alleges that she did not possess Consumer Studies. Secondly, she alleged that she should have been considered, and shortlisted because she taught Tourism. It is therefore important to analyse these issues separately.

Whether the 2nd respondent has the inherent requirements?

29. The advertisement required candidates to possess either Tourism or Consumer Studies as reflected in document “R24”. The undisputed evidence of the 1st respondent was that, following curriculum changes, the subject Home Economics was divided into two separate subjects, namely Hospitality and Consumer Studies. Consequently, educators who qualified in Home Economics are qualified to teach both Hospitality and Consumer Studies. The 2nd respondent majored in Home Economics and therefore met the inherent requirements of the advertised post. On the evidence presented, I am satisfied that the 2nd respondent was suitably qualified and was correctly shortlisted for the position.

Whether the applicant has met the requirements?

30. The applicant testified that her major subjects were Afrikaans and Biology. The advertisement expressly required candidates to possess either Tourism or Consumer Studies as subjects in their qualifications. The applicant correctly conceded that the advertisement did not require candidates merely to have taught the relevant subject. While the applicant has taught Tourism since 2016 and attended departmental workshops relating thereto, teaching experience alone did not satisfy the minimum requirements stipulated in the advertisement. It is common cause that the applicant does not possess either Tourism or Consumer Studies as subjects in her qualification. In the circumstances, I am satisfied that she did not meet the inherent requirements of the advertised post and that the 1st respondent acted fairly in not shortlisting her.
31. The applicant failed to establish that there were any outstanding or missing documents in her application which resulted in her not being shortlisted or that she suffered any prejudice as a consequence. There was no evidence before me demonstrating that her application was excluded from consideration due to incomplete documentation. The evidence of the 1st respondent was that the initial affidavit submitted by the 2nd respondent was unclear or illegible, and that the 2nd respondent was accordingly requested to submit a clearer copy. This evidence was not materially disputed. It is further the applicant evidence that the 2nd respondent and her, submitted their application forms on the same day prior to the closing date.
32. The applicant’s representative only raised the issue during closing arguments, contending that the applicant had not been afforded similar treatment. However, no evidence was led to establish that the applicant had submitted an unclear or defective document, requested an opportunity to rectify any alleged deficiency, or was denied such an opportunity. In the absence of evidence demonstrating differential treatment or resulting prejudice, the applicant’s contention amounts to mere assertion and cannot be sustained. Conclusion
33. Having considered the totality of the evidence before me, I find that the applicant has failed to establish that she was subjected to unfair conduct by the 1st respondent relating to promotion. The evidence demonstrates that the 2nd respondent met the inherent requirements of the advertised position, whereas the applicant did not. The decision not to shortlist the applicant was therefore rational, and fair. Accordingly, the applicant has failed to discharge the onus of proving that the 1st respondent committed an unfair labour practice as contemplated in section 186(2)(a) of the Act.

Award

34. The applicant, Nothekanti Grace Kgosana, has failed to prove that she was the victim of an unfair labour practice in terms of Section 186(2)(a) of the Act, relating to promotion, by the 1st respondent, the Department of Education – Eastern Cape.
35. The 2nd respondent, Xoliswa Beatrice Stemela, did meet the inherent requirements of the advertised position.
36. The applicant’s application is dismissed.

Signature:
Commissioner: Khuduga Tlale
Sector: Education