THE ARBITRATION BETWEEN

MR MOJALEFA NTEU APPLICANT

AND

THE HEAD OF DEPARTMENT:
NORTH WEST DEPARTMENT OF EDUCATION 1ST RESPONDENT

MR THOLE TYBALT 2ND RESPONDENT
Case No: ELRC493-25/26NW
Dates: 07 November 2025 and 23 January 2026
Venue: Lerona Secondary School, Christiana

AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1. This is the arbitration award between Mr Mojalefa Nteu, the applicant, and the Head of Department: North West Department of Education, the 1st respondent and Mr Thole Tybalt, the 2nd respondent.
2. The arbitration was held following section 186(2) of the Labour Relations Act (the Act) , and the award is issued in terms of section 138(7) of the Act, under the auspices of the Education Labour Relations Council (hereinafter the Council).
3. The arbitration hearings took place on 07 November 2025 and 23 January 2026 at the 1st respondent’s Lerona Secondary School in Christiana. The proceedings were digitally recorded, with Mr Eddy Thekiso as the interpreter. The applicant was present and unrepresented. The respondents were represented by Mr Tatedi Matshaba, the Labour Relations Officer.

ISSUES TO BE DECIDED

4. I am called upon to decide whether the 1st respondent committed an act of unfair labour practice relating to promotion, when it promoted the 2nd respondent to a post of Departmental Head, instead of the applicant.

BACKGROUND

5. The 1st respondent is the Head of the Department of Education at the provincial sphere of government in the North West Province. It is common cause that the 1st respondent employed the applicant as of 04 April 2019, who, at the time of the dispute, held the position of Teacher PL 1 with a monthly salary of R 31 486.75. The dispute arose on 08 May 2025, following the 2nd respondent’s appointment to the promotional post of Departmental Head for English (the post) at Lerona Secondary School.
6. The applicant lodged an unfair labour practice dispute (promotion) with this Council on 05 August 2025. A conciliation took place, wherein the dispute remained unresolved. The arbitration subsequently took place on the dates mentioned in paragraph 3 above.
7. In addition to the information provided above, the parties agreed as common cause factors that the applicant was on REQV 14 and was shortlisted for the post. They have also agreed in Pre-Arbitration that the School Governing Body (SGB) of Lerona Secondary School recommended the 2nd respondent for appointment in the post. It is also common cause that the 1st respondent excluded the applicant and two other teachers, one of whom is the secretary to the SGB, from the first meeting of the SGB.

SURVEY OF EVIDENCE AND ARGUMENTS

8. This section constitutes a summary of the relevant evidence and arguments put forward by the parties. It is not intended to be exhaustive, but I have considered all submissions in reaching my conclusions. The onus of proof was on the applicant to show that the 1st respondent committed an act of unfair labour practice.

Documentary & Real Evidence

9. The parties handed in the following evidence bundles:
   Applicant : Bundle A
   Respondents: Bundle R

Applicant’s Submissions

10. Mr Mojalefa Nteu, the applicant, testified as the first witness in his case. He testified that he was also serving on the SGB on behalf of the Teachers Component, and accused the school’s acting principal of having declared an interest in the post before it could even be advertised. The applicant stated that he and two other members of the SGB from the Teachers Component were excluded from the SGB meeting which formulated the Interviewing Panel.
11. The applicant further accused the acting principal of having opened the shortlist envelope, which came from the 1st respondent’s district office outside the SGB meeting. He stated that he should have been invited to the SGB meeting and afforded an opportunity to recuse himself for purposes of the Interviewing Panel’s formation. The applicant referred to a sworn statement of a fellow colleague, Mr LF Olifant, who stated that he (Olifant) overheard the acting principal mentioning that the 2nd respondent was his preferred candidate for appointment in the post.
12. The applicant also referred to the attendance register and complained about the 1st respondent’s decision to allow one of its cleaners to sit in at the interviews on behalf of its administrator. He stated that he was listed as the fourth-best candidate at the end and believes that the process was unfair. The applicant stated that the first meeting of the SGB did not form a quorum and that no attendance register of that meeting exists.
13. In cross-examination, the applicant disagreed with the 1st respondent’s PAM document (par. 3.3) and questioned how the 1st respondent knew that he applied for the post. He conceded that the three who were not invited to the special SGB meeting were applicants for different posts. The applicant stated that he did not raise the acting principal’s declaration at the interviews, and agreed that the principal was an observer at the interviews and did not allocate any marks.
14. The applicant accused the acting principal of having influenced the process right from the beginning and the selection of panel members and those who attended the first SGB meeting. Although the applicant asserted that the interview committee was unlawfully appointed, he declined to comment on the fairness of the interview process.
15. The applicant agreed under cross-examination to waive his claim for an appointment to the post, but insisted on being compensated for the alleged unfair labour practice. He agreed that the SGB and the School Management Team (SMT) had discretion over who would assist them with administrative matters during the interview process.
16. Mr Lesley Franklin Olifant ‘Mr Olifant’, a fellow Teacher and SGB Member, testified as the applicant’s witness. He testified that the applicant and the acting principal, Mr Nguta, engaged in a commotion arising from the applicant’s belief that Mr Nguta had illegally sold school property. He stated that it was then that Mr Nguta told the applicant that the 2nd respondent would get the post. Mr Olifant stated that no one was aware of his application for a post, and that, as a general member of the SGB, he should have been invited to the first meeting.
17. In cross-examination, Mr Olifant stated that he should have been invited to the first meeting, and was not aware of bullet point 3 of paragraph 3.3 of the PAM document because he did not know what transpired in the applicant’s interviews. He insisted that Mr Nguta influenced the 2nd respondent’s appointment even though he could not tell how it happened.

1st Respondent’s Submissions

18. Mr MA Nguta ‘Mr Nguta’, the 1st respondent’s Acting Principal at Lerona Secondary School, testified as the only witness for the respondents. He testified that he was part of a Circular 9 recruitment process and was the resource person. He stated that the names of the applicant, together with those of the other two SGB members (teachers), were written outside the shortlisting package (envelope) received by him from their district office, and that it was how they applied paragraph 3.3 of the PAM document by not inviting the applicant and the two others to the first SGB meeting.
19. Mr Nguta denied having declared any interest in the post contended by the applicant and the 2nd respondent, and had no problem with the applicant and that the appointment of the 2nd respondent was fair. In cross-examination, Mr Nguta stood by his testimony and denied being befriended to the SGB Chairperson.

ANALYSIS OF EVIDENCE AND ARGUMENTS

20. This is an unfair labour practice dispute relating to promotion, wherein the applicant alleges that there was undue influence in the appointment of the 2nd respondent to the post. The 1st respondent contended that there was nothing untoward in the appointment of the 2nd respondent to the post, and that the applicant’s right to compete for the post was adhered to.
21. Section 191 of the Act provides the following:
22. Disputes about unfair dismissals and unfair labour practices.—
    (1) (a) If there is a dispute about the fairness of a dismissal, or a dispute about an unfair labour
    practice, the dismissed employee or the employee alleging the unfair labour practice may refer the dispute in writing to—
    (i) a council, if the parties to the dispute fall within the registered scope of that council; or
    (ii) the Commission, if no council has jurisdiction.
    (b) A referral in terms of paragraph (a) must be made within—
    (i) 30 days of the date of a dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal;
    (ii) 90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence.
23. It is clear from the provisions of section 191 that an inquiry by this Council into the decision of the 1st respondent not to promote the applicant is permitted by law and is allowed. The evidence is clear that the dispute was lodged within 90 days, and I am satisfied that this Council is clothed with the necessary jurisdiction to determine this dispute.
24. It is the applicant’s case that longlistings and shortlistings of candidates are conducted by the 1st respondent’s district office, whereafter the district then forwards a sealed envelope of the shortlisted candidates’ applications to the school, whereafter the SGB would then convene a special meeting to set up an interviewing panel.
25. The applicant claims that three posts were advertised at the school, of which he applied for one of them, and his two fellow colleagues who serve with him on the SGB on behalf of the teachers component applied for the other two positions. He is aggrieved that the three of them were not invited to the special SGB meeting at which he would have, for the first time, informed the SGB that he had applied for one of the vacancies and would have recused himself from the interview panel.
26. The 1st respondent relied on its PAM document to justify its decision on why there was no need to invite the applicant and his colleagues to the special SGB meeting, in that their names were written on the envelope as shortlisted candidates. The PAM document provides the following:

3.3 Shortlisting and interviews
(a) Interview Committees shall be established at educational institution where there are advertised
vacancies.
(b) The Interview Committee shall comprise:
(i) In the case of public schools:
• one departmental representative (who may be the school principal), as an observer and resource person
• the Principal of the school (if he/she is not the department’s representative), except in the case where she/he is the applicant;
• members of the school governing body, excluding educator members who are applicants to the advertised post/s; [my emphasis added]

26. The applicant could not prove through policy or norms that he should have been invited to the special meeting of the SGB, where he should have been allowed to recuse himself. He admitted that he had no case study or experience of such a process. As a result, it is my finding that no peremptory duty existed on the 1st respondent to invite the applicant to that special SGB meeting, and that the exclusion of the applicant and his colleagues from that meeting was in accordance with the PAM document.

Mr Nguta’s Influence

27. The applicant and his witness, Mr Olifant, alleged that Mr Nguta influenced the process to the point that he promised that the 2nd respondent would get the post, and so it happened. However, the applicant did not pursue these allegations regarding the declaration made by Mr Nguta during cross-examination. It appears that the applicant felt intimidated by Mr Nguta’s presence in the arbitration boardroom, in that he did not put the allegations to Mr Nguta. The allegations of the applicant that Mr Nguta declared that the 2nd respondent would get the post, and that Mr Nguta influenced the SGB to recommend the 2nd respondent, are untested with Mr Nguta, and therefore remain allegations.
28. Mr Nguta was not given an opportunity to express himself on these allegations by the applicant. As a result, I am not persuaded that Mr Nguta made such a declaration. The applicant has therefore failed to prove his allegations on a balance of probabilities.
29. Section 185 of the Act provides the following:

185 Right not to be unfairly dismissed or subjected to unfair labour practice
Every employee has the right not to be-
(i) Unfairly dismissed; and
(ii) Subjected to unfair labour practice

30. In the final analysis, it is my finding that the respondent did not breach the applicant’s right to a fair labour practice.
31. In the premise, I make the following award:

AWARD

32. The 1st respondent, Head of Department: North West Department of Education, did not commit an act of unfair labour practice (promotion) towards the applicant, Mr Mojalefa Nteu.
33. The applicant’s case is hereby dismissed.

This is done and dated on 11 February 2026 at Warrenton.

David Pietersen
ELRC Commissioner