IN THE EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION AWARD

Arbitrator: Retief Olivier
Case number: ELRC 123/22/23WC
Date of Award: 02 October 2025

Balston Fortuin Applicant
and
Western Cape Education Department 1st Respondent
J Saaiman 2nd Respondent

Applicant’s representative: Adv F Rodriguez

1st Respondent’s representative: Ms A Blankner

2nd Respondent’s representative: Mr N S Lamani – SADTU

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearings took place virtually on 4 November 2024, postponed in order to issue a joinder for the 2nd respondent Ms B Saaiman, the appointed principal. The case was then again postponed on 21 January 2025 due to the internet network being down and parties unable to connect. The matter then continued on 24 February 2025, 27 March 2025 and 3 September 2025. Ms A Blankner, labour relations official, represented the employer the WCED. Ms B Saaiman, joined as 2nd Respondent, was represented by Mr N S Lamani from SADTU. The applicant Mr Fortuin was represented by advocate F Rodriques, instructed by Darren Thomas & Associates.
2. Written closing arguments were submitted as agreed.

ISSUE TO BE DECIDED

3. The applicant Mr Fortuin referred the matter as an unfair labour practice. The applicant had applied for a promotion post, Principal at Beaufort West Secondary School in 2019. He was interviewed and recommended for the position, but the WCED then informed him and the School Governing Body (SGB) that no appointment will be made and that the position should be advertised. There was only one recommendation from the SGB, that of the applicant.
4. The SGB appealed the decision, but the Head of the Education Department (HoD), rejected the appeal and indicated that the position must be re-advertised on the basis that the applicant was a post level 1 educator with limited experience. The applicant thereafter submitted the grievance and as it had not been resolved he referred the matter to the ELRC. The dispute was eventually set down for arbitration in terms of a subsequent judgement from the Labour Court.
5. The post was eventually re-advertised several times and eventually in 2024 Ms B Saaiman was appointed as the principal in respect of post 1362, as advertised in 2022. The applicant had also applied and was interviewed and Ms B Saaiman was appointed after some delay. This appointment was not disputed.
6. I must determine whether the employer committed an unfair labour practice.
   BACKGROUND TO THE ISSUE
7. The applicant is employed as an educator in a post level 1 position since April 2001 at Beaufort West Senior Secondary High School. He applied for the principal’s post of Beaufort West Secondary School and as the sole candidate and nominee of the SGB for the post, the applicant submitted the HOD should have appointed him as per the recommendation of the SGB. There were only two candidates, but the other candidate withdrew from the appointment process just prior to the interviewing stage.
8. As noted, the SGB was also aggrieved by the decision of the HoD that the post should be re-advertised and appealed the decision, stating that the applicant will be prejudiced. The dispute before me is about the applicant’s allegation of an unfair labour practice committed by the employer, not the grievance of the SGB. The applicant’s contention is that the WCED committed an unfair labour practice by not appointing him following the recommendation of the SGB. He disputed the decision of the HoD that he was not sufficiently experienced to be appointed.
9. The respondent submitted that the applicant was interviewed and was afforded fair opportunity to be considered and was nominated by the SGB. The appointment process was fair but the consideration of the HoD was that the applicant was not sufficiently experienced, therefore the decision to re-advertise. The HoD exercised his discretion fairly.

SURVEY OF EVIDENCE AND ARGUMENT

10. Each party called witnesses to testify and submitted comprehensive written closing arguments. Bundles of documents were also submitted as evidence. Fairly extensive evidence was led, and cross examination was conducted. Although I have considered all the evidence and arguments, I am only referring to those aspects relevant to determine the dispute and brief summaries of evidence, as I am required in terms of sec 138(7) of the LRA to provide an award with brief reasons.

Applicant’s version:

11. Mr Balston Fortuin, the applicant, testified that he met all the requirements for appointment and presented his CV and referenced to all the experience he had, acting in various different positions, as a head of department, as deputy principal and his 20 years educator experience, leadership positions, member of the school management team, various trainings and workshops that he had attended, disputing that he had limited experience.
12. He testified to the appointment process indicating that he went to the interview, was nominated for the position by the SGB, and in January 2020 was requested to go for a fingerprinting in George, which created an expectation and confirmation of his appointment. He was therefore very surprised and aggrieved that his appointment was not confirmed and that the decision of the HoD was that the position must be re-advertised. He also stated that the SGB supported him and the SGB submitted an appeal, indicating that they were not willing to re-advertise the position and that he should be appointed.
13. He was not informed of the reasons for him not being appointed, but the SGB provided him with letters from the WCED, indicating that he had limited experience. He disputed this further also in cross-examination, again reiterating his experience and that the decision not to appoint him was unfair. He did acknowledge that he was never informed that he would be appointed for the post when he went for fingerprinting. Regarding a lack of management and financial experience he stated he had served on the SGB finance committee. He did acknowledge that in respect of the positions mentioned he only acted in the positions of head of department and deputy principal and never acted as a principal. He never served in the positions of head of department or deputy principal as an educator.
14. Mr Selvin De Klerk, the former chairperson of the SGB and a member of the interviewing panel testified that they considered the applicant’s application and found that he met all the requirements for the position, and also considered his extensive experience as an educator, including acting in various positions. He confirmed that the applicant was the only candidate considered as the other candidate withdrew prior to the interview process. The applicant had sufficient management experience and could learn “on-the-job” any skills he needed to; he conceded that the HoD has the final decision and has the right to deviate from the SGB’s recommendation. However, he was of the view that not appointing the applicant was unfair seeing that he was the sole candidate for the post and met the criteria for appointment.
15. He stated the SGB were not satisfied with the HoD’s decision to have the position re-advertised. He submitted appeals on behalf of the SGB, noted as statements of fact, wherein he expressed his concerns with the HoD’s decision, to which at first he received no response from any of the parties and submitted a second appeal. He referred to the role and involvement of the circuit manager, Mr Harker, who was present during the deliberation by members of the panel, submitting he should have advised them that if he was of the view that the applicant had limited experience and that he was not a suitable candidate. He further indicated the circuit manager misled them if he as the circuit manager was not satisfied with the applicant being recommended. He should then have stopped the process.
16. During cross-examination, he reiterated that the applicant met all the requirements and had the necessary experience but conceded that the SGB was of the opinion that the applicant could have received help to capacitate him as principal of the school. He also conceded that the applicant’s experience was only in acting positions, and not in the actual positions of head of department and deputy principal.
17. He submitted the circuit manager could have stopped the process when it became evident that only the applicant would be interviewed but could not confirm that the HoD acted outside his framework as prescribed by the Employment of Educators Act, 1996 and acknowledged that the HoD acted lawfully, but submitted it was not reasonable. He further acknowledged that in terms of the recruitment prescripts the SGB had to submit nominations of three candidates to the HoD but stated that the SGB felt that it was sufficient to only submit one nomination. He acknowledges that in those circumstances there could not have been any comparator in terms of other candidates but did not believe that to be unreasonable.
18. In closing arguments, the applicant representative referred extensively to policy documents and legislation, which is not repeated herein. Regarding the evidence submitted the applicant argued that respondent’s witness, Ms Sheffers, confirmed that the applicant met the requirements to be considered and that he did have the necessary seven year’s teaching experience to be appointed. He also noted that she conceded the HoD considered the recommendations of the circuit manager, and he therefore submitted this was a breach of the Educators Act, and that the conduct of the HoD was therefore arbitrary.
19. It was further argued that the decision of the HoD that the matter should be re-advertised did not contain any reasons as to why the applicant could not be appointed, submitting that the HoD also did not provide any reasons for his decision in respect of the appeals from the SGB. The circuit manager was never called to testify as to why he recommended re-advertising the position, as he did not express his concern during the selection process, neither could the circuit manager or the HoD clarify what was meant by limited experience and why extensive experience in school management was a requirement.
20. If consideration is given to the above facts: a) the absence of the Circuit Manager’s evidence (testimony), b) the fact that the HoD had considered the Circuit Manager’s recommendation which was contrary to any of the provisions of the Act, as the act states that the HoD must consider the recommendation of the SGB, and c) the Respondent’s witness concession that this conduct of the Head was arbitrary, the arbitrator has to consider whether sufficient evidence was presented to confirm that the applicant had met all requirements as presented by the SGB for the Hod to have approved the recommendation of the SGB to appoint the Applicant.
21. Based on the testimony of the Applicant’s witnesses and his documentary evidence presented there is no reason not to appoint the applicant. The HoD’s decision to re-advertise was not just unreasonable but arbitrary, hence the applicant should have been appointed and that is the relief sought.

Employer’s version;

22. Ms. Debra Scheffers, Deputy Director in her testimony indicated that Recruitment & Selection has an audit role when an SGB has completed and submitted post documentation to determine if the process was procedurally and substantively fair. If all in order, the matter is submitted to the HoD for approval. In terms of the HoD’s powers that is vested in Chapter 3, section 7(1) of the EEA, the Circuit Manager as the resource person completes Annexure B, which is in line with section 7(1) of the EEA to provide the HoD with insight into whether the process was fair or not. The resource person does not have the right to stop any process as that would be unfair towards any applicant. Recruitment and Selection determined that there were no procedural irregularities during the process that resulted in the applicant’s nomination.
23. During cross-examination, Ms Scheffers acknowledged the applicant’s experience based on his CV and that it met the minimum requirements for appointment as per the advertisement. She however noted that even though the EEA does not say HoD must consider the recommendation of the Circuit Manager, it makes provision for consideration of SGB recommendation. Annexure B was designed to be completed by departmental representation in the process. Under re-examination, Ms Scheffers emphasised that any experience the applicant cited forms part of shortlisting and would have been taken into account at that phase of the process, that acting in a post versus being appointed in a post would not be the full scope of duties in acting. Annexure B is not a recommendation by the Circuit Manager/resource person but provides the HoD further information to enable him to make his decision.
24. In closing argument, the respondent referred to evidence presented by the witnesses, noting that, particularly in terms of the relief sought, he failed to provide any sort of reason why he felt he should be appointed other than that he was the nominated candidate, nor did he indicate that he was the best candidate for the post. Mr De Klerk, on behalf of the applicant stated that the applicant met the criteria for appointment and the SGB felt the applicant was suitable, but conceded that the SGB felt the applicant could have gotten help and support to capacitate him as principal of the school, even though the school has approximately 1400 learners and a staff accomplishment of approximately 40 individuals. He also testified about the role of the circuit manager indicating the circuit manager should have stopped the process when it became evident that only the applicant was interviewed. It was submitted he clearly misunderstood the role of the circuit manager as a resource person in the recruitment process, as he does not have any authority to abort a process.
25. The respondent then refers to the PAM process stating an interview committee must comprise of members of the SGB, union observers and “one departmental representative as an observer and resource person”. The rationale behind this provision is not only to ensure that a departmental representative is present at all times to guide the panel to ensure that correct procedures/processes are in place and that legislation and policies are implemented correctly, but also to ensure that there will be somebody who can report to the employer about everything that happened during the process including and especially about things that are not reflected in the minutes. The departmental representative must be the eyes and ears of the employer, who cannot be present at the interviews, so that the employer would know about any irregularities that occurred during the process. In this manner, the HoD would be in the position to determine whether he should accept the nomination or ranking of the SGB, or whether he should consider alternative avenues, in this case re-advertisement. If the resource person does his job well, then there should be no reason for the union observers to raise objections, because the employer representative would ensure that there is no procedural unfair conduct. This was in fact the case with the applicant. Nowhere does the role of resource person indicate that he has the power to stop a process, other than ensuring compliance of legislation and prescripts.
26. Annexure B, the report completed by Mr Harkerr, the circuit manager that their witness Ms Scheffers referred too, was designed to be completed by departmental representation in the process. Under re-examination, Ms Scheffers emphasised that any experience the applicant cited forms part of shortlisting and would have been taken into account at that phase of the process, that acting in a post versus being appointed in a post would not be the full scope of duties in acting, and Annexure B is not a recommendation by the Circuit Manager/resource person but provides the HoD further information to enable him to make a decision.
27. The role of the resource person with his completion of Annexure B cannot be viewed in isolation of the provisions of the PAM and what is required of said person which is what the applicant’s case is saying. Annexure B is thus merely a tool used to assist the HoD to exercise his powers in a fair and just manner to ensure that the SGB process was procedurally and substantively fair. One can also not take Annexure B as hearsay evidence as this information was part of the process and submission of documents to the HoD. The fact that Mr Harker did not testify during the proceedings does not make this document inadmissible as from the evidence led, the decision of non-appointment was with the HoD and that the SGB’s process was in order.
28. The respondent also noted various instances of case law, which is not being repeated herein, noting that an employee who wants to persuade a court or employment tribunal that there was unfair conduct relating to promotion and that the employer’s decision should be interfered with, has an onerous task. This is so because an employee has no right to promotion but only to be fairly considered for promotion, Westraat and SA Police Service (2003) 24 ILJ 1197 (BCA) and further stating in order to show unfairness relating to promotion, an employee needs to show that the employer, in not appointing him or her and appointing another candidate, acted in a manner which would ordinarily allow a court of law to interfere with the decisions of a functionary by proving for example that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or discriminated. Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC); Grogan Dismissal, Discrimination and Unfair Labour Practices (August 2005) Juta page 41; SA Municipal Workers Union on behalf of Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA) 718; Benjamin v University of Cape Town [2003] 12 BLLR 1209 (LC) at 1223-1224; Marra v Telkom SA LTD (1999) 20 ILJ 1964 (CCMA) 1968 per Christie C .
29. It is submitted that the relief the applicant asks for is to be appointed in the post. Arbitrators cannot reward applicants in promotion disputes with appointment, merely because there may be an irregularity in the process. Appointments are made on merit and not as punishment to the employer for unfair conduct. The applicant does not state that he is the best candidate for the post; only that he should have been appointed, nor did Mr De Klerk state that the applicant was the best candidate. The contention was that he met the criteria and thus should have been appointed is not the test which must be applied when determining whether an arbitrator may interfere with the decision of first respondent not to promote applicant. The HoD exercised his discretion when he recommended the re-advertisement of the post. The respondent is of the view that the applicant failed to discharge the onus that an unfair labour practice was committed.
    .
    ANALYSIS OF EVIDENCE AND ARGUMENT
30. In an alleged unfair labour practice dispute the onus is on the employee to prove that the employer committed an unfair labour practice. John Grogan states the following as hallmarks of unfair conduct:
    • Where one person or group of people is favoured over another on the basis of irrelevant criteria.
    • Where people are treated arbitrarily – i e not in accordance with established rules.
    • Where people are treated irrationally – i e on the basis of unproven or untested views and suppositions
    • Where people are penalized or denied an advantage without being able to state their case.
31. The applicant’s key argument regarding the alleged unfair labour practice committed by the employer was that he met the requirements in the advertisement and was recommended for the position by the SGB. That is not disputed, however as the key requirements in the advertisement these were the minimum requirements to be considered for the position in terms of shortlisting. In this instance it also needs to be considered that there were only two candidates, one of which withdrew prior to the interviewing process. Therefore, the applicant remained the only candidate to be considered, and as such the only one who could be nominated. There was no comparative in this matter.
32. In the EEA in chapter 3 regarding appointments, promotions and transfers it is stated in section 6 (c), that the governing body will submit in order of preference to the head of department, a list of at least three names of recommended candidates. The SGB submitted a list to the HoD consisting of one nominee, the applicant. The section also notes that if there are fewer than three candidates it must be done in consultation with the HoD. This also did not occur.
33. The further argument by the applicant is that he had the necessary management experience required to be a principal, since he acted in certain positions such as head of department and as deputy principal. It is trite that his experience in acting as a deputy principal is limited to 3 months, in a period where he was employed as a post level educator for more than 20 years at that time. This is clearly very limited experience. It is noted that he only acted in these positions, he has no experience as a head of department or as a deputy principal as he considered himself. I agree with the respondent’s witness, Ms Sheffer, that while he had exposure to such positions, this is very limited experience, as he never served as head of a department or a deputy principal. In fact, there is even some concession to this in the evidence from the applicant’s witness that the SGB noted that he could be assisted to be properly capacitated in the role of principal. I agree with the respondent that the experience noted is limited and it certainly cannot be found to be unreasonable to be considered and viewed as limited experience for a position of principal. It is also noted that the applicant did not dispute the appointment of the joined candidate Ms Bernadette Saaiman as principal, nor did he, in any sense, argue that he should have been appointed because he was the better candidate.
34. The applicant could not submit any evidence of arbitrary or irrational conduct by the employer. In the case of SAPS v Safety and Security Bargaining Council & others (Labour Court case P426,/08), judgement date 27/10/2010 it was stated:
    “(24) The jurisprudence that the arbitrators and judges have developed can be summarized as follows:
    It is not sufficient for a candidate for promotion to claim that she was more qualified or more suitable than the successful candidate. The candidate must show that the decision to appoint another was unfair. If the decision of the employer to appoint one in preference to the other is rational no questions of unfairness can arise. The corollary of this principle is that a comparison of relative strengths and weaknesses of the candidates are only relevant if they suggest the selection was arbitrary or motivated by an unacceptable reason.”
35. Similarly, in the ELRC Collective Agreement 3 of 2016; Guidelines, Promotion Arbitrations, it is stated at paragraph 33:
    “Where an applicant in an unfair promotion dispute is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice related to promotion, he or she should generally at least demonstrate that there was conduct that denied him or her fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an acceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer.”
36. In this instance the applicant representative submitted that the employer committed an unfair labour practice in that the HoD unreasonably and arbitrarily determined that the position should be advertised. The applicant offered no concrete evidence of arbitrary action but argued that since the HoD found the applicant’s management and financial experience lacking, that the decision that the position should be advertised was unreasonable. It was submitted that he acted unlawfully because he considered a recommendation in Annexure B, a verification tool for nomination of principle and or deputy principles. This document is part of the recruitment and selection process and assists the decisionmaker to consider the recommendation from the SGB. Nowhere is there any instruction or law that indicates such information may not be considered, as was presented in this document.
37. Even if it was considered the report contained in annexure B compiled by the circuit manager should not have stated recommendation, but only referred to ‘an opinion’, I cannot find that this implies that the HoD did not apply his mind when considering the singular nomination of the applicant as recommendation from the SGB.
38. Is clear that in this instance the applicant was afforded the opportunity to be considered for the position, in fact the nomination was forwarded to the HOD from the SGB, and the nomination of the SGB was considered. Even though that there were no comparative nominations, the HoD determined that the matter be re-advertised. Neither would the applicant have been prohibited or prejudiced to submit a further application for consideration when the matter was re-advertised. The respondent argued that the applicant himself at no point argued that he was the better candidate or could prove that he was the best candidate to be appointed. His argument was solely based on the fact that he met the requirements, which in fact would be the minimum requirements for shortlisting, and did have the necessary experience. I have already noted that I agree with the respondent and with the decision of the HoD that the applicant’s experience was very limited in consideration of appointment to a principal position.
39. n Noonan v SSSBC and others [2012] 33 ILJ 2597 (LAC) (handed down on 1 June 2012), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
40. Further In POPCRU obo Nkoko v GPSSBC and others (C291/2018) [2022] ZALCCT 50 (handed down on 10 August 2022) the Court, referred with approval, to the judgment of the LAC in Department of Rural Development & Agrarian Reform, Eastern Cape v GPSSBC and others (2020) 41 ILJ 1321 (LAC) wherein the LAC held that the decision on the merits of an unfair labour practice stands to be reviewed in the light of whether it is one that no reasonable Commissioner could reach. Thus, the essential question to be determined in this appeal was therefore whether the Commissioner’s finding that the Department’s omission to promote the Employee was unfair, and his deeming it reasonable to order promotion, were unreasonable. The LAC also held that Courts and Commissioners should be reluctant to interfere with an Employer’s decision to refuse promotion. Only when the decision or reasoning is assailable because there is evidence that the Employer acted on the basis of some unreasonable, irrelevant or invidious consideration; or the decision was arbitrary, capricious or unfair; or the Employer failed to apply his / her mind to the promotion or acted in bad faith, should there be interference. However, where is no rational relationship between the decision not to promote, the purpose of the promotion and the information upon which the impugned decision is based, interference with the decision will be justified. The LAC also remarked that since there is ordinarily no right to promotion, Commissioners and Courts should be hesitant before appointing the aggrieved Employee to the post.
41. In the light of the above I find that there is no there is evidence that the Employer acted based on some unreasonable, irrelevant or invidious consideration; or that the decision was arbitrary, capricious or unfair; or the Employer failed to apply his / her mind to the promotion or acted in bad faith.
42. I find that the applicant Mr Fortuin has not proven that the employer committed an unfair labour practice.
    AWARD
43. The employer, the Western Cape Education Department, did not commit an unfair labour practice in the appointment process for the position of principal of Beaufort West Secondary School in respect of which the applicant Mr Balston Fortuin applied for in 2019.
44. The application by the applicant, Mr Balston Fortuin, is dismissed.

Panelist: Retief Olivier