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13 February 2026 – ELRC124-25/26 EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN EAST LONDON

Case No ELRC124-25/26 EC

In the matter between

NAPTOSA OBO MFUNDISO NCEDANA APPLICANT

AND

DEPARTMENT OF EDUCATION: EASTERN CAPE 1ST RESPONDENT

AND

KHOMBELA THAMSANQA 2ND RESPONDENT

NONXUBA BULELA 3RD RESPONDENT

ARBITRATOR: W R PRETORIUS

HEARD: 1 JULY 2025; 18 AUGUST 2025; 22 OCTOBER 2025 (POSTPONED); 23 JANUARY 2026

CLOSING ARGUMENTS: 30 JANUARY 2026

DATE OF AWARD: 5 FEBRUARY 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to promotion

ARBITRATION AWARD

 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

  1. The arbitration of this dispute in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) in relation to promotion was held at the East London District Office.
  2. The Applicant, Mr. Mfundiso Ncedana, attended and was represented by Mr. Aaron Mhlontlo an official of the National Professional Teachers’ Organisation of South Africa (NAPTOSA). The 1st Respondent, the Department of Education: Eastern Cape, was represented by its employee, Mr. Sandile Nyalambisa, whilst the 2nd Respondent, Mr. Khombela Thamsanqa, and the 3rd Respondent, Mr. Nonxuba Bulela, appeared in person.
  3. These proceedings conducted in English were recorded digitally supported with handwritten notes. The parties complied with their agreement in submitting their respective written closing arguments on 30 January 2026.
  4. The Applicant and the 1st Respondent submitted separate bundles of documents into the record which were accepted for what they purported to be, unless disputed.

ISSUES TO BE DETERMINED

  1. I must determine whether the 1st Respondent committed an unfair labour practice in relation to promotion as contemplated by section 186(2)(a) of the LRA, by its decision not to shortlist the Applicant, and if so, determine appropriate relief. The Applicant was seeking 12 months’ compensation for procedural unfairness.

THE BACKGROUND TO THE DISPUTE

  1. The parties had concluded a pre-arbitration minute which are summarised hereunder:
  2. In terms of the common cause facts, the parties agreed:

(a) The Applicant is employed by the 1st Respondent since 17 March 1997 and is currently stationed at Dr WB Rubusana building in Mdantsane, East London.
(b) The Applicant was not shortlisted subsequent to his application for the DCES Circuit Management post advertised in the open E-Recruitment portal, post number CMC29/10/2024 dated December 2024 with the closing date of 31 December 2024. The 2nd and 3rd Respondents were shortlisted and appointed.
(c) The Applicant, a post level 4 SES, earns R552,960 per annum and the post in question ranges between R599,247.00 and R1,143,771.00 per annum.
(d) The Applicant has acted as a DCES: Circuit Manager in the Buffalo City Metropolitan Education District.

  1. The procedural issues in dispute were whether:

(a) The additional criteria of 10 years as a school principal was applied fairly by the panel in respect of the Applicant?
(b) The Applicant’s acting period as Circuit Manager was considered by the shortlisting panel?

SURVEY OF EVIDENCE AND ARGUMENTS

  1. I have considered all the evidence and arguments and because section 138 of the LRA requires brief reasons, I have only referred to the evidence and arguments necessary to substantiate my award. What therefore follows hereunder is a summary of the evidence and arguments of the parties and not a verbatim record of proceedings.
  2. The Applicant was the only witness in his case. The 1st Respondent called one witness, whilst the 2nd and 3rd Respondents did not testify. All evidence was presented under oath.

The Applicant’s case

  1. Mr. Mfundiso Ncedana, the Applicant, testified that he was employed as a post level 1 educator on 17 March 1997. He was subsequently promoted to the position of Deputy School Principal in 2011 whereafter he was promoted to the position of SES. He acted as Circuit Manager for 23 months, i.e., from July 2022 until July 2024. He is in possession of a B.ED degree in Education Management.
  2. He applied for the position because he met all the requirements stated in the advertisement. He referred to his CV on pages 35 to 39 of the Applicant’s bundle and pointed to his acting period of 23 months, i.e., July 2022 to December 2023 and February 2024 to July 2024 (page 37).
  3. He referred to the par. B.5.6.7 of the Personnel Administration Measures (the PAM) which stated 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.
  4. According to him, the additional criterion of 10 years’ experience as a school principal was unfair to him and other candidates, considering that the advertisement stated 8 years’ experience in the educational field.
  5. During cross-examination by the 1st Respondent, he confirmed that he was not acting when the post was advertised during November 2024 as his acting period ended during July 2024. He conceded that the additional criterion of 10 years’ experience as school principal did not only affect him.

The 1st Respondent’s case

  1. Mr. Victor Mabece (Mabece), the chairperson of the shortlisting panel, testified that 241 candidates applied for the position in question. The panel decided to include the additional criteria as a means to fairly eliminate candidates who did not meet the additional requirements. According to him, the 8 years’ experience in the educational field in the advertisement referred to appointment as an educator; whilst experience as a school principal was referred to in the CV or recruitment portal. He pointed out that the Applicant did not meet the additional criterion of 10 years’ experience as school principal.
  2. The Applicant was not acting in the post in dispute at the time of the advertisement in relation to par. B.5.6.7 of the PAM. There was no bias against the Applicant as the Unions were present during the shortlisting process. He maintained that due process was followed and it was done fairly and consistently in respect of all candidates.
  3. During cross-examination by the Applicant, he submitted that the panel decided by consensus to increase the selection criteria during the second round of shortlisting.
  4. He confirmed that a submission was made to Head Office for the payment of an acting allowance for the Applicant. He disputed the version that the Applicant was acting in the disputed position for 12 months as at the date of the advertisement.
  5. He agreed that the advertisement did not make reference to experience as a school principal; however, the panel was at liberty to set additional criteria to meet the required number of shortlisted candidates for interviews. He maintained that the process of shortlisting was fair and consistent.
  6. In re-examination he emphasised that the Applicant was not shortlisted because he did not have 10 years’ experience as a school principal.

ANALYSIS OF THE EVIDENCE AND ARGUMENTS

  1. In unfair labour practice disputes the onus to the prove the existence of the unfair labour practice rests with the employee party and as such the Applicant is required to prove that an act or omission had occurred with renders his non-promotion an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
  2. It is settled law that when deciding whether a procedure conducted in terms of a collectively agreed procedure, as in casu, involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness.
  3. The Applicant in terms of the pre-arbitration minute only challenged procedural unfairness. I am bound by the parameters set in the pre-arbitration minute between the parties.
  4. In this regard, it is trite that in order for the Applicant to prove an unfair labour practice relating to promotion, he should have at least demonstrated that there was conduct that denied him a fair opportunity to compete for the post or conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and misled the employer.
  5. It is settled law that strict compliance with the guidelines for appointments provided in the PAM and ELRC Collective Agreements is not necessary.

Whether or not the additional criteria of 10 years’ experience as school principal was fairly applied by the panel to the Applicant?

  1. I am not persuaded by the Applicant’s closing argument with reference to the shortlisting minutes that the selection criteria set by the panel was not in line with the requirements of the advert.
  2. The evidence of Mabece showed that the panel during the first round of shortlisting considered the criteria as stated in the advertisement, i.e., a recognised three-year or four-year qualification (REQV 14) which included professional teacher education, minimum of 8 years’ experience in the educational field with credible, relevant management experience, SACE registration and a valid driver’s license.
  3. The Applicant made it to the second round when it was then decided by the panel to apply additional criteria in order to comply with par. B.5.6.7 of the PAM which states inter alia that the list of short-listed candidates for interview purposes should not exceed five per post. [my emphasis]
  4. Mabece’s evidence was persuasive that the only reason why the Applicant was not shortlisted was because he did not have 10 years’ experience as a school principal which is a proven fact. I am convinced by Mabece’s explanation that the additional criteria and in particular the increase in experience as a school principal were fair, considering the requirements of the advertised post of DCES: Circuit Manager which provides inter alia for proven experience of leading and coordinating schools and management of school principals.
  5. Given the above, I find that the shortlisting panel has exercised its discretion fairly, consistently and without bias in setting the additional criteria, in particular the 10 years’ experience as a school principal.

Whether or not the Applicant’s acting period as Circuit Manager was considered?

  1. It is trite that the burden of proof never shifts. This goes hand in hand with the old Latin maxim: “actori incumbit probatio”. Plainly put, he who alleges must prove. However, if the other party, as in casu, sets up an exception or defence, in respect of it, he is considered to be in the position of the applicant or plaintiff and has to prove his exception.
  2. It is common cause from the pre-arbitration minute that the Applicant acted in the position in dispute. The aforementioned question must therefore be answered in relation to whether the Applicant acted in compliance with paragraph B.5.6.7 of the PAM which states inter alia that “…An educator who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted. [my emphasis] The plain reading from my underlining is that the employer is obliged to shortlist an educator who has acted in the advertised post for 12 months or longer.
  3. The 1st Respondent has failed to prove its exception that the applicant did not act in the advertised position for 12 months or longer. In this regard, Mabece was unable to provide corroborative evidence that the Applicant did not act for 12 months or longer in the advertised post, other than repeating the already known, i.e., by the time the post was advertised, the Applicant was not acting.
  4. An adverse inference is drawn from the fact that the 1st Respondent did not call relevant witnesses from HR to corroborate Mabece’s exception. Moreover, the minutes of the shortlisting are silent on the issue whether the Applicant’s acting period as Circuit Manager was considered.
  5. It follows that the 1st Respondent was obliged to shortlist the Applicant in terms of par. B.5.6.7 of the PAM given the peremptory tone of the aforesaid provision, despite him not meeting the additional criterion of 10 years’ experience as a school principal.
  6. It is my view that if the panel had properly considered the work experience of the Applicant as stated in his CV as well as par. B.5.6.7 of the PAM; they ought to have come to the conclusion that he met the threshold set in the PAM. The question is not, as argued by the 1st Respondent, whether the Applicant was acting in the post at the time it was advertised – but rather whether he met the requirement of having acted for 12 months in the advertised position.
  7. The issue of the non- payment of the acting allowance as raised by the 1st Respondent in its closing arguments is not an issue for this arbitration.
  8. On this basis, I find that the 1st Respondent had committed an unfair labour practice in relation to the Applicant due to its failure to comply with a material aspect of the recruitment process that being a properly conducted shortlisting process.
  9. In coming to the question of relief, the Applicant does not seek appointment to the post, but rather seeks compensation for the prejudice suffered, the Applicant specifically seeks 12 months’ remuneration as compensation.
  10. In determining the quantum for compensatory relief, I have considered the LRA and ELRC Collective Agreement 3 of 2016 (the Agreement) which is the guideline for arbitrators conducting promotion disputes.
  11. In terms of the Agreement, relief for procedural unfairness in promotion disputes, takes the form of a solatium, which can range between R5,000.00 and R20,000.00 depending on the severity of the procedural non-compliance. It is trite that the Courts have taken a conservative approach in determining the quantum of the solatium.
  12. There are no factors in the present matter which would require me to deviate from the Agreement as it relates to the above-mentioned issue of relief.
  13. In determining the quantum of the solatium, I have considered the procedural non-compliance in this case and I am satisfied that it had a material effect on the process itself but does not in itself establish substantive unfairness as no evidence was lead in this regard, neither was it disputed in terms of the pre-arbitration minute.
  14. I, therefore, deem it appropriate to award the Applicant a solatium of R10.000.00 for the prejudiced suffered through the actions of the 1st Respondent.
  15. Accordingly, I make the following award and order:

AWARD

  1. The Applicant has discharged the onus to prove that the 1st Respondent had committed an unfair labour practice in relation to promotion as contemplated by section 186(2)(a) of the LRA.
  2. The 1st Respondent is ordered to pay to the Applicant an amount of R10,000.00 (ten thousand rand), this being the solatium ordered as relief for the unfair labour practice committed by the 1st Respondent.
  3. Payment by the 1st Respondent must be made upon or before the 28 February 2026.
  4. There is no order as to costs.

William Richard Pretorius