13 April 2026 – ELRC994-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY
CASE NO.: ELRC994-25/26GP
In the matter between:-

NOMSA MALATJI APPLICANT
and

DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT

Arbitrator: Mmamahlola Gloria Rabyanyana
Heard: 20 February and 17 March 2026
Closing arguments: 24 March 2026
Date of award: 10 April 2026
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice relating to benefits.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

A virtual arbitration was held on 20 February 2026 and 17 March 2026. Mr. R. Khoza, an attorney, represented the applicant. Mr. M. Lefosa, a Labour Relations Officer, represented the respondent.
I recorded the proceedings digitally. The applicant’s bundle of documents is marked ‘A,’ and the Respondent’s bundle is marked ‘R’. The parties submitted their closing arguments on 24 March 2026.

BACKGROUND TO THE ISSUES

The applicant referred the dispute of unfair labour practice relating to benefits to the Council for conciliation. The dispute could not be resolved, and a certificate of the outcome of the conciliation to that effect was issued. The applicant requested that the dispute be arbitrated. ISSUES TO BE DECIDED
I am required to decide whether the respondent’s failure to approve the applicant to mark the 2025 grade 12 Mathematics literacy paper constitutes an act of unfair labour practice. Substantively, I must determine if she qualified to mark the subject.
Should I find in favour of the applicant, I will further determine the appropriate relief. The applicant seeks to be paid the marking benefits that she could have received if she had been approved .
SURVEY OF EVIDENCE AND ARGUMENTS
AGREED FACTORS
The parties agreed to the following factors as being common cause: –
6.1. The applicant is a Post–level 1 Educator at Progress Comprehensive School. She has been at the school since 2018 and with the 2008 Department, respectively.
6.2. She teaches Grade 8 mathematics and Grade 10 mathematics literacy. She applied for the Grade 12 Mathematics Literacy Paper 2 Marker ‘Maths literacy ’. The application was rejected at the school level.
6.3. The last time she taught Grade 12 Maths literacy was in 2018. It is a requirement that the educator must have been teaching the subject for 2 years in the year of application.
6.4. The head of department (‘HOD’) makes a final decision to appoint Grade 12 Markers.
Ms Nomsa Malatji testified that she applied to mark the Maths Literacy Grade 12 paper in 2025, but the principal rejected her application. The principal informed her that she had rejected her application because she was not teaching Grade 12 that year. The principal regards her as a useless educator.
A12 paragraph 4.2 is silent about the teaching of the Grade 12 requirement. She had marked in 2021, which is an experience she acquired within 5 years of 2025. In 2021, there was no specific criterion.
Their school does not have a verification Committee. A2 is her application status displayed on the 02 October 2025 dashboard, which states ‘application completed’. It meant that the application was approved. The Principal later declined it. She could not recall her class pass rate for the subject in 2025. She was not aware of the Grade 12 marking requirement.
During cross-examination, she stated that the status on the dashboard was on 23 October 2025; the following day, on 24 October, it was declined. Her colleagues congratulated her after receiving the memo, which meant she was appointed. Teachers from other schools are approved to mark when they are not currently teaching Grade 12. She was once appointed for marking in 2021.
Ms Caroline Monageng testified for the respondent that she has been the school principal since 2022. Before the appointment, she acted as the principal. Among her responsibilities, she ensures compliance and adherence to departmental policies.
The school has a verification committee consisting of four members: herself as the principal, the Departmental head who is a Chief examiner at the school, and two educators. The committee receives and records the application forms and hands them to her (principal) for verification. Those who do not meet the requirements are disqualified at the verification stage. The applicant was disqualified at this stage. The department did not issue an appointment letter.
She called the applicant to her office and made her aware of the requirements. However, the applicant was not interested in engaging, her response in IsiXhosa was “Sizo dibana phambili,” translated as “We will meet ahead”.
R15, item 2.6, provides that the appointment of markers will be based on learner performance in the subject one is applying. Educators/Subject Advisors who have obtained a 50% and above pass rate will have an added advantage. The applicant has never taught grade 12 since 2020-2024. She had no results to produce.
R15, item 3: WHO DOES NOT QUALIFY TO APPLY AS A MARKER, 3.2 read thus, Educators who have not taught grade 12 during the period 2020-2024 in the subject they are applying for. And 3.1.3 of the Guidelines dated February 2025.
R 17, item 5- INSTRUCTIONS TO PRINCIPALS/CESs. on 5.3 provides that principals must not sign the Declaration form of Educators/Subject Advisors who are not teaching in your school/who are not teaching the subject/advising in your district, or who have outstanding documents, or who are not qualified to teach the subject.
During cross-examination, she stated that she acted within her scope of guidelines by disqualifying the applicant because she was not teaching the subject. The applicant was allowed to mark in 2021 because of a shortage of markers. Thereafter, the Department developed guidelines: Examination Instruction 18 2025, on the R15.
Grade 12 educators attend various workshops over the weekends and on holidays with their Subject Facilitators to discuss the requirements for teaching the subject in Grade 12, avoid unnecessary errors/mistakes when marking because of syllabus changes, and familiarize educators with subject content.
CLOSING ARGUMENTS
The applicant’s representative argued that the Respondent indicated that the requirement to qualify as a marker was at least teaching or having taught in Grade 12 for the previous two years. However, they could not explain the two policies presented, which provided different requirements. The Applicant met the requirements set out in the policy in her bundle, which the Respondent did not dispute.
She participated in the marking process in 2021. The principal should have considered her experience. She was declined for the low yearly average pass rate and for not teaching Grade 12. The principal also rejected her because of personal issues she had with her.
The respondent argued that the applicant was never appointed to mark grade 12 examination 2025. Her claim that she was appointed is unfounded. Her application was disqualified at the school level because she did not meet the requirements. She was not teaching Grade 12 at the time when applying to mark the subject. She has never taught Grade 12 since she joined the School in 2018.
In terms of the Examination Instructions 18 2025: Marking Guidelines, the application/uploading of the applicant information begins at the school level. The policy requires the principal, who represents the HOD at school, to do verification and sign Declaration forms of the applicants of only those who qualify/meet the requirements. The marking guideline on the R bundle is the same as the Examination Instruction 18 2025.
ANALYSIS OF EVIDENCE AND ARGUMENTS
The applicant bears the onus to prove that the respondent committed an act of unfair labour practice when it did not approve her application to mark Grade 12 2025 Math Literacy examination papers.
It is immaterial whether the applicant was aware of the requirements for marking the subject when she applied. Nonetheless, she did not challenge the Principal’s testimony that she was made aware. What is critical is whether she met the requirements to mark the subject.
The applicant’s claim that she was approved to mark but rejected by the principal is a fallacy. Furthermore, her claim that her application was not verified, as there was no verification committee at the school, is baseless, because if that were the case, her application could have been escalated to the Head of the Department for a determination. This did not occur, it is common cause that she was rejected at the school level.
In any event, determining if the application was verified is secondary to whether she qualified to mark the subject. In other words, it may be necessary if I find that she is qualified to mark.
It is common cause that it is a requirement that the educator must have been teaching the subject for two (2) years in the year of application. The last time the applicant taught Grade 12 Math literacy was in 2018. She teaches Grade 8 mathematics and Grade 10 mathematics literacy. On this ground, she is disqualified from marking the subject. The principal testified that she was rejected during the verification process for failing to meet the requirements. Her marking the subject in 2021 is irrelevant.
The mentioned common cause is corroborated by Paragraph 3.2 of assessment 18 of 2025, which disqualifies Educators who have not taught grade 12 during the period 2020-2024 in the subject they are applying for. In addition, paragraph 3.1.3 of the Guidelines for the appointment of Markers, dated 18 February 2025, provides that an educator must have at least 2 years of teaching experience at the Grade 12 level in the past 5 years in the relevant subject. This does not apply to the applicant.
In the premises, the applicant failed dismally to prove on the balance of probabilities that the respondent committed an act of unfair labour practice by not approving her to mark the subject. Her dispute is, in essence, misplaced and frivolous.
AWARD
I order that:
The respondent did not commit an act of unfair labour practice.
The dispute is dismissed with no cost.
Signed and dated at Pretoria on 10 April 2026.