IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA MS TEAMS VIRTUAL PLATFORM
Case Number ELRC1269-25/26WC

In the matter between:

E. LOURENS
Applicant

and

DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration was conducted on the MS Teams virtual platform on 14 April and 25 May 2026. Written closing arguments were received on 1 June 2026. The applicant was represented by Mr. Raynardt Botha of the Suid Afrikaanse Onderwys Unie (SAOU). The respondent was represented by Mr. Mc Donald Mooi, its labour relations officer.

THE ISSUE IN DISPUTE

2. I must decide whether the respondent perpetrated an unfair labour practice as contemplated in Section186(2)(a) of the Labour relations Act 66 of 1995 as amended(LRA) when it failed to appoint the applicant into the Head of Department (HOD) post at the Voorentoe Primary school.

THE BACKGROUND TO THE DISPUTE

3. The applicant was appointed into a PL 1 position at the Voorentoe primary school in June 2021. Since January 2024 she has been acting in the PL2 position of department head. This, as the consequence of an internal arrangement within the school.
4. It is the applicant’s contention that the respondent acted unfairly by not appointing her permanently into the position of department head.
5. The applicant earns a salary of R367,263 per annum. At the interviews the applicant had been the first candidate selected by the school governing body (SGB).
6. At the time of the referral of her dispute to the ELRC another candidate, Mr. Maluka, had been appointed but had since stepped down.
7. It is the contention of the applicant that she must therefore be the second in line for the post and must be appointed as she is still the preferred candidate in the position.
8. The post had, however, been re-advertised.
9. It is the contention of the respondent that for the purpose of being appointed to the HOD position, the applicant had acted in the post only when it had become funded in January 2025 which is when the applicant started being remunerated in the post.
10. The post had been advertised in post number 696 in vacancy list 02 of 2025 and the advertisement closed on 6 July 2025. Acting in the post is no guarantee of appointment into the post.
11. The responsibility of the panel is to make recommendations. It is the responsibility of the decision maker to appoint, hire or not.
12. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.

SUMMARY OF EVIDENCE AND ARGUMENT

13. Both parties submitted bundles of documentary evidence, neither recording any objections. Elzanne Lourens(Lourens) and Fortuin Foster(Foster), a deputy principal at the school, testified under oath for the applicant.
14. Prudence Maria Michaels (Michaels), an assistant director in recruitment and selection dealing with advertised posts for 10 years, testified under oath for the respondent.

The evidence for the applicant:

15. The applicant had applied for the post of acting departmental head in December 2023 when it had been advertised internally at the school.
16. She had therefore been acting in the position for more than 2 years and 3 months from January 2024 to date and without remuneration.
17. Non remuneration of 05 post had been explained by the principal that Forster had moved into the acting deputy principal position therefore even though she was acting she would not be remunerated for so acting.
18. The applicant had been evaluated at the PL2 level and in terms of the Western Cape Education Department quality management system (QMS).
19. According to the Personnel Administrative Measures (PAM) an educator who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.
20. Lourens had applied for the post in June 2025 at which point she had been acting in the post for 1 year and 6 months.
21. The motivation by the SGB of the applicant for the position confirms her acting in the position since 2024 and that she is currently doing a good job and that she be appointed into the position which is in the best interests of the school.
22. Since that time the respondent had been informing the principal to await the appointment of one, Mr. Maluka, the second nominated candidate with the applicant being the first.
23. Since Mr. Maluka had declined the appointment, the applicant has still been acting in the post and without being paid as the post she was acting in was not funded, a total of 188 days when she applied in June 2025.
24. She was appraised in terms of the QMS of the Western Cape Education Department in 2025 as post level 2 though this was to check that she knew what she was supposed to do in the post.
25. In terms of the recruitment and selection criteria reflected in collective agreement 1 of 23 she had been invited to the interview despite not having been acting in the post for 12 months and with having scored 36% which was under the cut off of 60% set by the SGB.
26. She confirmed under cross examination that the SGB can only recommend someone for the post but cannot appoint the person.
27. On the other hand, Forster had been remunerated in the deputy head post which was a vacant funded post while he was acting therein.
28. He testified that the applicant had been evaluated by the SMT at the PL2 level just to ensure that she knew what she is supposed to know. This was in order to establish that she was a good educator in order to bridge the gap.
29. After the applicant applied for the post when the respondent advertised it in January 2025 and as a vacant funded post, she was shortlisted as a consequence of her having acted in the post.
30. She had therefore been acting in the post as a vacant funded post since 1 January 2025.
31. She had initially been appointed to act in the post internally and without remuneration as she was the only candidate who had submitted a CV.
32. The applicant had been fulfilling all of the duties in the post while Forster was acting as the deputy principal.
33. In the Personnel Administrative Measures (PAM) of 2022, clause B.5.4.9 it does not state that the post must be vacant funded. It states only that :
    “The list of short-listed candidates for interview purposes should not exceed five per post. An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.”
34. At the time the applicant applied for the post she had already been acting therein for more than 12 months viz. 2 years 3 months and some days and therefore qualified to be automatically short-listed.
35. Fortuin had not promised the applicant that she would be promoted to the position of head of department.
36. He agreed that despite her acting in the post and his supervising her she still scored less than Maluka.
37. He agreed that the respondent had decided to appoint Maluka as he had outscored the applicant and because there was no way it could appoint the applicant as she underscored and had only 7 months acting as opposed to 12 months acting in the position.

The evidence for the respondent:

38. Michaels is the assistant director dealing with advertised posts in recruitment and selection.
39. She testified that the PAM prescripts advise that a person acting in a vacant funded post for 12 months must be short-listed.
40. The applicant had been acting in the post as a vacant funded post for 7 months only since it was advertised in January 2025 and when Forster had vacated it to take up the post of deputy principal.
41. She had informed the circuit manager that the applicant could not be appointed as she had not achieved the cut off of 60% and had not been in the post as a vacant funded post for 12 months and so should not have been interviewed.
42. Under cross examination Michaels testified that the advertised post is the vacant funded post in which an educator must act and is the basis on which recruitment and selection always operated.
43. It meant that the post was vacant and funded because it had been advertised.
    The post had not been vacant and funded when the applicant had acted in it after applying for it internally as an acting deputy head of department post as Forster was still the warm body in the post at that time and until when he was appointed permanently into the post of deputy principal in which he had been acting.
44. The applicant had not been paid in the post as it enabled her to gain experience. Her acting in 2024 counts for her experience and not as per vacant funded post for 12 consecutive months.
45. A post cannot be advertised if not vacant and funded. A post which is advertised and is not vacant and funded will be withdrawn from the bulletin.
46. It was put to Michaels that neither her letter to the circuit manager nor the PAM stated that the post must be vacant and funded her response was that a filled post cannot be placed in the bulletin. And to advertise a post means that it will be placed in the bulletin.

ANALYSIS OF EVIDENCE AND ARGUMENT

47. It is clear from the evidence presented at this arbitration that the applicant has applied for a post of acting departmental head when it had been advertised internally at the school in December 2023.
48. Regarding the contention of the applicant that she had therefore acted in the post and in doing so had even exceeded 12 months as stipulated in the PAM, the evidence shows that of the most significance in this matter is the distinction the parties draw between themselves as to what in fact constitutes acting that is legitimate for the purpose of the applicant being shortlisted as provided for in terms of clause 5.4.9 of the PAM.
49. The PAM does however mention what constitutes “official” acting and how that is attained. This would suffice for the purpose of this exercise as it would be a definition that would express the operational needs of the respondent and the recognition of an educator having acted in the post.
50. In terms of the PAM it is peremptory that the appointment of teachers in positions in which they would be required to act must be in writing and they must be remunerated.
51. This would not prevent a school such as in casu of appointing an educator to act in a position for the purpose of gaining experience as the applicant conceded was the situation in her case.
52. A further reading of the PAM shows that it is only the respondent that can appoint an educator to officially act in a position. The SGB or the school cannot do so. This makes sense as an acting position as aforesaid, requires the incumbent to be remunerated for performing such function.
53. This function of the employer cannot be circumvented by the appointment of someone into a position such as was the applicant to act without being remunerated.
54. The contention therefore of the respondent that an educator wanting to take advantage of the minimum 12 months period for automatic entry to the short-listing stage must have acted in a vacant funded position is plausible, acceptable and fair. In other words, the respondent cannot appoint an educator to act without remunerating the educator for so acting. Therefore, the position in which an educator is appointed to act must be a vacant funded position, as it is only in such circumstances that money is available or the payment of remuneration.
55. In casu therefore the period that the applicant acted without remuneration viz. the period before the post was advertised in January 2025, cannot be said to have been official acting as it was not in a vacant funded position, and entitling the applicant to be paid for such work. This acting therefore is not that referred to in clause 5.4.9 of the PAM.
56. The evidence shows clearly that the post had become vacant funded only upon Forster’s having been appointed permanently into the deputy principal position and thereby rendering the HOD post vacant and funded.
57. It is then clear that it is only within this operational context of the respondent that it permits the appointment of an educator into an acting position because the educator then can be paid for so acting.
58. In such circumstance only is it then possible for the educator to take advantage of the 12 month period of acting referred to in clause 5.4.9 of the PAM.
59. The question then is whether or not the conduct of the respondent in conducting itself in the manner that it did can be said to constitute an unfair labour practice as provided for in S186(2)(a) of the LRA.
60. It is to be noted that in terms of the testimony of Michaels, the respondent’s manner of implementation of 5.4.9 of the PAM is how it has always applied this clause.
61. It is so, that the applicant bears the onus to show that the respondent has conducted itself irrationally, capriciously, arbitrarily or in any other manner provided for in S186(2)(a) of the LRA.
62. In terms of the PAM 2022 clause C.4.1.2 (which is the current expression of the 2003 ministerial amendment No. 267 dated 21 February 2003 by Education Minister, the late Kader Asmal) an educator complying with the minimum requirements in paragraph B.3.2 of Chapter B, must be appointed in writing by the employer to act.
63. The advantage the applicant would have derived from her acting for the months prior to the advertising of the post in January 2025 would be realised in the interview stage as she would presumably have gained skills that would enable her to showcase her suitability for the post better, and better than other interviewees.
64. On the other hand, as alluded to above, the advantage of having acted for 12 months in terms of 5.4.9 is automatic entry to the interview which is deliberately established in terms of the PAM.
65. In casu that there would be a vacant and funded post head of department became obvious only upon the post being vacated by Forster on 1 Jan 2025 consequent upon his appointment into the post of deputy principal and when it was advertised. The argument of the respondent therefore that the post must be vacant and funded in casu is accepted. This so especially as the prescripts of the PAM dictate that an educator acting must be paid an acting allowance. Without this certainty the respondent would not likely appoint an educator to act and not pay the allowance for so acting.
66. The experience that the applicant would have gained would have been for competing for any HOD position should one become available at any school. She cannot have acted specifically for the purpose of gaining experience in this specific post for the purpose of being appointed therein. This she could have done only upon the post becoming vacant and funded. As I have stated above that knowledge she had gained only upon Forster’s having been appointed as the deputy principal.
67. The conduct of the respondent therefore cannot be said to have been irrational, capricious, arbitrary or in a manner as provided for in S186(2)(a) of the LRA.
68. The conduct of the respondent in not accepting the shortlisting of the applicant on the basis that she had not acted for 12 months in a vacant funded post, and cancelling her interview therefore does not infringe the provisions of S186(2)(a) of the LRA.
69. It is also so that the respondent has in casu exercised its right to appoint its considered best candidate viz. Maluka and that in doing so the respondent had concluded that Lourens was not the best candidate for the position. It is clear from the evidence before this arbitration that the respondent had done so on the basis of Lourens not having qualified for the interview on the ground of acting in the position for 12 months as she had officially acted for only 6 or 7 months in a vacant funded post.
70. Clearly therefore the logic that comes through in the testimony of Michaels dictates that the post advertised in the bulletin must be vacant and funded, which it is when advertised in the bulletin.
71. Differently put, the post cannot be the post until it is advertised. The educator must then have acted in the advertised post for 12 months to gain the advantage specified in clause 5.4.9 of the PAM.
72. Therefore the acting of Lourens for the purpose of gaining the advantage expressed in clause 5.4.9, can be counted only from the time the post is advertised for the purpose of satisfying clause 5.4.9 and for the purpose of filling it.
73. The further circumstances in this matter, Lourens’ contention of having qualified for shortlisting by having acted for 12 months or more having been rejected then reveals Lourens not having qualified for short-listing as she had not achieved the 60% cut off score set by the SGB for such purpose, her having scored only 36%, which then further disqualifies her from entry to the interview stage.
74. The respondent is therefore clearly within its right to readvertise the post upon Maluka’s declining the appointment.
75. Having therefore considered all the evidence presented at this arbitration I find that the conduct of the respondent in not appointing Lourens into the advertised Post Level 2, Head of Department post does not constitute an unfair labour practice as provided for in S186(2)(a) of the LRA.

AWARD

76. This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.