Case Number: ELRC 676-23/24 NW
Commissioner: Annelie Bevan
Date of Award: 06 May 2025

ARBITRATION AWARD

In the matter between

KEALEBOGA BROWN MOTHIBI

(Union/Applicant)

And

NORTH WEST PROVINCE, DEPARTMENT OF EDUCATION & P SEAMETSO

(First and Second Respondents)

Details of the hearing and representation

1. The ELRC scheduled the arbitration for the unfair labour practice dispute relating to promotion between TG Fout, the Applicant and the Department of Education, North West Province, the First Respondent and P Seametso, the Second Respondent, for 09h00 on 22 April 2025 at the Respondent’s premises in Vryburg.
2. The First Respondent requested to join via the online platform Zoom. The Applicant and I were present at the venue in Vryburg. The Applicant represented himself. Ms MC Cindi represented the First Respondent. The Second Respondent was absent.
3. The arbitration was electronically recorded, and I made typed notes.
4. The Respondent requested to submit written closing arguments by 29 April 2025.

The issue to be decided

5. I must decide whether the First Respondent’s decision not to appoint the Applicant as principal at Tshepang Thugo Primary School, for the post advertised under post number RSM/P/05, constitutes a procedurally and substantively unfair labour practice relating to promotion in terms of section 186(2) of the LRA and, if so, the appropriate relief.
6. The Applicant initially sought retrospective appointment in the promotion post but indicated on 22 April 2025 that he seeks protected promotion and alternative compensation.
7. The parties agreed that if the award favours the Applicant, the First Respondent’s Persal system can calculate the quantum of backpay due to the Applicant.

Background to the matter

8. The Applicant referred an unfair labour practice dispute relating to promotion to the Council after becoming aware of the alleged unfair labour practice on 15 December 2023. The matter was unsuccessfully conciliated and scheduled before me for arbitration on 26 February 2024.
9. On 26 February 2024, the Second Respondent was not notified of the sitting as an incorrect email address was used. The Applicant party supplied the correct email address. The arbitration was postponed to enable proper service for the Second Respondent.
10. Between March and August 2024, the matter was scheduled before other Commissioners. On 16 May 2024, Commissioner Klopper issued a ruling ordering the disclosure of certain documents, after the application was argued before her on 13 May 2024.
11. On 20 August 2024, in the arbitration before me, the Applicant party informed me that not all documents were disclosed and that he needs the application submitted by him to be disclosed so that it can be compared with the successful candidate. I requested the Council to subpoena T Kgosinkwe to appear before me and to produce the said documents.
12. On 7 October 2024, T Kgosinkwe appeared and testified. Her testimony indicated that the document is not in her possession but that three other officials might have information about it. The Applicant requested that the matter be postponed to allow him to subpoena these three officials.
13. On 29 November 2024, Mr Mokgara testified as the chair of the interview panel regarding the missing document. He could also not produce the document. The Second Respondent was also absent and requested a postponement via email. The arbitration was postponed to allow the Applicant a last opportunity to try and subpoena the correct person and to allow the Second Respondent to attend the arbitration at the next sitting. I issued a formal postponement ruling.
14. On 22 April 2025, the Applicant was present and represented himself, the Second Respondent was absent despite being duly notified of the hearing, and CN Cindi represented the First Respondent. The arbitration continued and was finalized.
15. On 20 August 2024, the issues in dispute were limited, and the parties agreed that the following issues were common cause:
    15.1 The Applicant is currently a Departmental Head at Thagomoso Primary School, Post level 2, earning an annual salary of R675 372.
    15.2 The First Respondent advertised promotional posts in terms of Departmental Circular no 26 of 2023 on 12 April 2023, with a closing date of 19 May 2023.
    15.3 The Applicant applied for the principal post at Tshepang Thuto Primary School, with post number RSM/P/05.
    15.4 The First Respondent did not shortlist the Applicant or invite him for an interview for the post.
    15.5 The First Respondent appointed the Second Respondent to the post.
16. The parties agreed that the following issues are in dispute:
    16.1 The panel did not consider the Applicant’s experience (28 years as a principal before he was demoted) or qualifications, which are far better than the Second Respondent or the shortlisted candidates.
17. The parties submitted the following bundles of documents: The Applicant submitted bundle “A” and the Respondent submitted bundle “R”.

Evidence and submissions of the parties

Evidence of subpoenaed witnesses:

18. T Kgosinkwe, the Office Manager, Local Education Office, Taung Sub-District Office, Department of Education, testified under oath:
    18.1 Her responsibilitiesinclude handling all human resources-related duties, like appointments. She has been doing this work for the past 31 years.
    18.2 She knows the Applicat professionally.
    18.3 During the appointment process, she will collect all the completed application forms from the district office. She placed the sealed envelopes in a secure room at the Taung sub-district office. When the management plan for shortlisting begins, the officials responsible for shortlisting will come to collect the sealed envelopes and take them to the schools. After shortlisting, the schools will return the shortlisted application forms to her until the interviews. Following the interviews, the applications of the shortlisted candidates will be returned to her, and she will then submit these to the district office.
    18.4 She confirmed that the application form will not be returned to her office if a candidate is not shortlisted and suggested that it might be at the school.
19. M Mokgara, the chair of the interview panel, testified under oath:
    19.1 He testified that when they shortlisted applicants, they gave each one a number, and the candidates were shortlisted without identifying them by their names.
    19.2 The documents of all candidates, both those shortlisted and those not shortlisted, were kept at the school, and all were returned to Mr Serei of the Department the day after the interviews were held.

The Applicant’s case:

20. The Applicant testified under oath in evidence in chief that:
    20.1 The Applicant applied for the principal post in Tsepang Thuto Primary School but was not shortlisted or appointed despite being the most suitable and experienced candidate. None of the shortlisted candidates matched his qualifications or experience (Bundle A, pages 8-9).
    20.2 The Applicant has 38 years of experience and an RQV 16 qualification. The Second Respondent has 10 years of experience and an RQV 14 qualification. The Second Respondent has five years of managerial experience, while the Applicant has been a school principal for 38 years.
    20.3 The Applicant was dissatisfied with not being shortlisted and filed a grievance. According to the minutes of the Panel Review Meeting dated 4 September 2023 (Bundle A, page 16), the panel found that the promotion process of Tsepang Thuto Primary School was unfair because the Applicant, who had the highest overall teaching and management experience and the highest qualification, was not shortlisted. The panel advised the District Director to nullify the process and establish an independent panel to restart the recruitment process.
    20.4 The Applicant was also convinced that the additional criteria considered by the panel, especially those regarding deputy principals and acting principals, were included to specifically favour the Second Respondent, who was the Deputy Principal at Tshepang Thutu Primary School (Bundle A, page 11 or Bundle R, page B4).
    Under cross-examination, he testified:
    20.5 He confirmed that he saw the qualifications and experience of the shortlisted candidates in the Schedules of the candidates (Bundle A, pages 12-14).
    20.6 According to the Applicant, the better one is qualified, the better candidate you would be for the post. He has a Master’s degree in Education Management. It should have been considered.
    20.7 He confirmed he was demoted from his post as principal, but he was allowed to apply for and be considered for the post.
    20.8 He could not confirm or deny that candidates were shortlisted for affirmative action or employment equity purposes.

The Respondent’s case:

21. Ms Cindi indicated that she would not call any witnesses on behalf of the Respondent, even after I asked her whether she was sure.

Applicant’s closing arguments:

22. He is aggrieved that the Respondent could not provide his application form despite his efforts to subpoena people to present it.
23. He remains convinced that he should have been shortlisted and appointed the best candidate, as he has better qualifications and experience than the Second Respondent. Even the Departmental Review Panel agreed with him when he lodged a grievance, and they advised the District Director to redo the process.
24. He is seeking protected promotion from 20 November 2023.

Respondent’s closing arguments:

25. Candidates had to meet the minimum requirements to be considered for the post, which the Second Respondent did. A Master’s degree in Education is not required.
26. The shortlisting panel is entitled to prescribe additional criteria to assist with the shortlisting and ensure that they get the best candidate for the post.
27. The Applicant indicated that he was once appointed as a principal but was demoted due to the mismanagement of funds, which he later repaid. Does this make him the best candidate as far as his experience is concerned?
28. No evidence was presented to show that the Second Respondent lacked the necessary skills to be appointed to the post.
29. There is no general right to be promoted, and the decision to promote falls within the employer’s managerial prerogative. An employee’s only right is to be fairly considered for promotion when a vacancy arises.

Analysis

30. I intend to offer brief reasons in my analysis as per Section 138 (7) of the LRA as amended, which states, “Within 14 days of the conclusion of the arbitration proceedings – the commissioner must issue an arbitration award with brief reasons”.
31. In terms of section 186 (2)(a) of the LRA, an unfair labour practice is defined as “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 or training of an employee or relating to the provision of benefits to an employee.” The Applicant referred an unfair labour practice dispute relating to promotion to the Council.
32. Whether the First Respondent has committed an unfair labour practice is an objective, factual enquiry.
33. The onus to establish that the conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the Applicant (City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (2013) 34 ILJ 1156 (LC)). Therefore, the employee must lay the evidentiary foundation on a balance of probabilities for their claim of an unfair labour practice. Mere dissatisfaction with a process’s outcome is insufficient to sustain that claim.
34. Generally, employers have broad discretion in determining whom they appoint. As the commission stated in Cullen v Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA) – “…the legislature did not intend to require arbitrating commissioners to assume the role of employment agencies. A commissioner’s function is not to ensure that the employer chooses the best or most worthy candidate for promotion, but to ensure that employers do not act unfairly towards candidates when selecting employees for promotion.”
35. Where an employee alleges that the employer’s failure to promote or appoint him amounts to an unfair labour practice, the employee must first establish a decision not to promote them (Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC) at 73). Without a decision not to promote, there can be no further inquiry about fairness.
36. In this case, the First Respondent admitted that the Applicant was not appointed. Thus, the decision not to promote was established.

Case law relevant to promotion disputes:

37. The Labour Appeal Court held in Noonan v Safety and Security Sectoral Bargaining Council and others [2012] 33 ILJ 2597 (LAC) that an employee has no right to promotion but only to be given a fair opportunity to compete for a post.
38. The obligation in terms of section 186(2) of the LRA is to act fairly towards the employee in the selection and promotion process but taking into account that it is the prerogative of the employer to make appointments (Justice v CCMA & others (2004) 25 ILJ 248 (LAC)). The exercise of that prerogative is not immune from scrutiny, as instances of gross unreasonableness in its exercise may draw inferences of bad faith. To that end, it is trite that central to disputes about appointments or promotion of employees is the principle that those courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions (George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 871 (LC). Any form of interference should be to dispense fairness to both parties.
39. In Arries v CCMA & others (2006) 27 ILJ 2324 (LC), the Labour Court stated that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion exercised by a party competent to exercise that discretion. The reason for this is clearly that the managerial prerogative ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. Therefore, an employee can only succeed in having the exercise of an employer’s discretion interfered with if it is demonstrated that the discretion was exercised capriciously or for insubstantial reasons or based upon any wrong principle or in a biased manner.
40. The Labour Appeal Court had found in the matter of Ncane v Lyster NO and others (DA27/15) [2017] ZALAC 1 (10 January 2017) that in the context of promotion, the employer must abide by the law and the objective standards and criteria that it has set for promotion. It distinguished between procedural fairness and substantive fairness. The employer must ensure that an eligible employee has a fair opportunity to compete for the post. Procedural fairness aims to achieve a fair substantive result, and the failure to follow a fair procedure may result in a decision also being substantively unfair. But the Court also acknowledged that assessing suitability for promotion is not a mechanical process and that subjectivity is involved. In this case, it was finally found that the National Instruction was followed and, therefore, procedurally, the process was fair.
41. In Sun International Management Pty Ltd v CCMA and Others (LC) (unreported case no JR 939/14, 18-11-2016) (Lagrange J), the Court held that in promotion disputes, it is not enough, to merely show that there was a breach of protocol or procedures in the recruitment process. It is also necessary for a complainant to show that the violation of the procedure had unfairly prejudiced him.

Applying the facts to the case law

42. In general, the purpose of promoting an employee is because the employer’s organisation has a vacancy for a person to perform a particular task, and candidates for promotion are employees functioning at a lower level who possibly have the qualifications, skills and ability to perform the tasks of the higher position. Good labour relations dictate that an employer must act fairly towards its employees. In the context of promotion, an employer must abide by the law and the objective standards and criteria set for promotion, including eligibility for the post and ensure that an eligible employee has a fair opportunity to compete for the post (Ncane v Lyster-case). This relates thus to the procedural fairness of such an unfair labour practice.
43. The promotion process would be procedurally fair if the Respondent applied the same rules or criteria to all candidates.
44. It is common cause between the parties that all shortlisted candidates and the Applicant met the minimum requirements set for the post. It was also a common cause that the selection panel decided on additional criteria to assist them in shortlisting the candidates who should be called for interviews (Bundle A, page 11 and Bundle R, page B4). The additional criteria were the following: (i) gender sensitivity and equity status; (ii) deputy principals and acting principals (management skills); (iii) demographics; and (iv) applications for the same post should not be considered.
45. The shortlisting panel’s decision to add deputy and acting principals as an additional criterion clearly shows they were looking for candidates with managerial experience and is clear from the Respondent’s document (Bundle R, page B4).
46. According to the undisputed documentary evidence (Bundle A, pages 12-14), which the Applicant referred to, the following candidates were shortlisted:
    (i) BP Seamco, an African male, Deputy Principal at Tshepang Thuto Primary School;
    (ii) MT Thakanyane, MR, an African male, Deputy Principal at Tshwaraganelo Primary School;
    (iii) SJ Mosimege, an African female, Departmental Head, Mapoitsile Primary School;
    (iv) NI Nyanzane, an African male, Deputy Principal, Bogosing Secondary School; and
    (v) MV Khonkhobe, an African female, Moitsemang Primary School
47. The Respondent opted not to call any witnesses. I therefore do not have the benefit of understanding how the additional criteria were applied. I can, however, also not ignore the obvious. It is clear that the shortlisting panel indeed selected Deputy Principals to be called for the interview, and then two female candidates.
48. I am cognizant of the decision in Assmang Limited (Blackrock Mine) v De Beer and Others (JR948/14) [2017] ZALCJHB 78 (28 February 2017) ) at paras 3 and 8, where the court held that: “No matter how crucial or self-evidence a document may seem to be, it can only have evidentiary value relevant to the extent to which they are contextualised by a witness who talks to the document in question.”
49. In the absence of a witness of the Respondent speaking to the document listing the additional criteria and the document indicating which candidates were shortlisted, I cannot help but agree with the Applicant that he is better qualified and more experienced than all five shortlisted candidates. Without evidence from the Respondent to contextualise the shortlisting document, it seems the Respondent shortlisted one of the female candidates (MV Khonkhobe) purely as an equity candidate, whilst she has no managerial experience, making it unlikely that she could compete with the other shortlisted candidates. I can therefore not but agree with the Applicant that he should at least have been shortlisted, considering his vast managerial experience and excellent qualifications. I, therefore, find that the Applicant discharged the onus to prove that the unfair labour practice was at least procedurally unfair. He should have been considered when none of the equity candidates met all the requirements, as he had the most experience.
50. However, when it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly, but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited, and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides (Goliath v Medscheme (Pty) Ltd 1996 (17) ILJ 760 at 768)
51. The Applicant was not able to discharge the onus to prove that the First Respondent’s decision to appoint the Second Respondent was irrational or grossly unreasonable or that there was any mala fides involved in the decision. The Second Respondent also met all the requirements and was indeed a Deputy Principal when he applied for the post.
52. No evidence was presented to convince me on a balance of probabilities that the First Respondent did not exercise its discretion properly when appointing the Second Respondent. No evidence was presented to convince me that the First Respondent acted capriciously or for insubstantial reasons or based upon any wrong principle or in a biased manner. To that end, it is trite that central to disputes about appointments or promotion of employees is the principle that those courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. There is no good cause to interfere with the First Respondent’s managerial prerogative in these circumstances.
53. There is no doubt in my mind that the Applicant was a very capable candidate and that he was disappointed with the outcome of the promotion. However, mere dissatisfaction with a process’s outcome is insufficient for a commissioner to interfere with the First Respondent’s prerogative. The Applicant, therefore, failed to discharge the onus to prove that the First Respondent’s decision not to promote him was substantively unfair.

Relief

54. Section 193(4) of the LRA determines that an arbitrator may determine any unfair labour practice on terms the arbitrator deems reasonable, including ordering reinstatement, re-employment or compensation. The Applicant is seeking a protected promotion.
55. In this matter, the First Respondent acted unfairly by not shortlisting the Applicant for the post and providing him with an opportunity to compete for it. The promotion is, therefore, only procedurally unfair. The unfair conduct can, however, be offset by an order of compensation.
56. The relief awarded to the Applicant would be in the form of solatium. In ARB Electrical Wholesalers (Pty) Ltd v Hibbert [2015] 11 BLLR 1081 (LAC), the Labour Appeal Court held that “Compensatory relief in terms of the LRA is not strictly speaking a payment for the loss of a job or the unfair labour practice but a monetary relief for the injured feeling and humiliation that the employee suffered at the hands of the employer. Put differently, it is a payment for impairing the employee’s dignity. This monetary relief is referred to as solatium. It constitutes a solace to satisfy an employee whose constitutionally protected right to a fair labour practice has been violated. The solatium must be seen as a monetary offering or pacifier to satisfy the hurt feelings of the employee, while at the same time penalising the employer. It is not, however, a token amount, hence the need for it to be “just and equitable”, and to this end, salary is used as one of the tools to determine what is “just and equitable”. When considering what a just and equitable amount is, the commissioner may consider the following factors: the nature and seriousness of the injustice, the unique circumstances of the matter, the extent of the employee’s humiliation, the relationship between the parties and the employer’s attitude after dismissal.”
57. It is clear from the evidence submitted by the Applicant that he felt very aggrieved. He has many years of experience as a principal (before his demotion), and his excellent qualifications were not considered. The Respondent did not present any evidence as to why the Applicant should not have been shortlisted, and it is clear that one of the shortlisted candidates did not have any managerial experience or skills. The decision of the First Respondent not to appoint the Applicant to the principal post was therefore only procedurally unfair. I have taken into consideration that the labour practice is only procedurally unfair. I have also considered the Applicant’s age and that it is unlikely that he would be promoted before his retirement. It would be fair to order the First Respondent to compensate the Applicant with two months’ salary at his current salary level, R675 372. (annual salary) / 12 X 2 = R 113 062.00 (ONE HUNDRED AND THIRTEEN THOUSAND AND SIXTY-TWO RAND), less any deductions the First Respondent is allowed to make in terms of the law.

Award

58. I find that the decision of the First Respondent, the Department of Education, North West, not to appoint the Applicant, KB Mothibi, as the Principal of Tshepang Thutho Primary School constitutes a procedurally unfair, but substantively fair labour practice as prescribed in section 186(2) of the LRA concerning promotion.
59. The First Respondent is ordered to pay the Applicant compensation equal to two months’ salary at his current salary level, in the amount of R 113 062.00 (ONE HUNDRED AND THIRTEEN THOUSAND AND SIXTY-TWO RAND), less any deductions the First Respondent is allowed to make in terms of the law.
60. The Respondent is ordered to make such payment, less any deductions allowed in law, to the Applicant on/before 31 May 2025.

Signature:

Panelist: ANNELIE BEVAN