13 October 2026 – ELRC1038-25/26MP

Panellist: Asnath Sedibane
Case No: ELRC1038-25/26MP
Date of Award: 12 October 2026

In the ARBITRATION between:

NATU obo Wilson, Stanley
(Union / Applicant)
and

Education Department of Mpumalanga
(1st Respondent)

Mthombeni RS
(2nd Respondent)

Union/Applicant’s representative: Mr Mduduzi Khumalo
Union/Applicant’s address:
1st Respondent’s representative: Mr McMillan Shabangu
1st Respondent’s address:

2nd Respondent’s representative: Absent
2nd Respondent’s address:

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing between NATU obo Wilson, Stanley (applicant) and the Education Department of Mpumalanga (first respondent) and RS Mthombeni (second respondent) was held under the auspices of the Education Labour Relation Council (ELRC), on 31st July 2026, virtually, via Microsoft Teams and on 18th September 2026, at the district offices of the Education Department of Mpumalanga in Ermelo. The matter was set down for arbitration in terms of section 186(2)(a) of the Labour Relations Act 66 of 1996 (“LRA’’).
At the conclusion of the leading of oral evidence on the 18th of September 2026, it was agreed between the parties and the Panellist that the parties would submit their closing arguments by no later than 25th September 2026. The proceedings were conducted in English and were both manually and digitally recorded. I have received closing arguments from the first respondent, and I have taken these into consideration when making this award. The applicant and the second respondent did not submit any closing arguments.
The applicant attended the arbitration hearing, and he was represented by Mr Mduduzi Khumalo, a NATU shop steward. The first respondent was represented by Mr McMillan Shabangu, an official of the first respondent. The second did not attend the process and he was not represented in the process.
The first respondent submitted a bundle of documents that was marked as bundle “R”. The applicant did not submit any documents.
The applicant and the first respondent concluded and signed minutes of the pre-arbitration hearing, which admitted in the arbitration process.
ISSUES TO BE DECIDED
I was required to determine whether the first respondent committed an unfair labour practice relating to promotion against the applicant in the recruitment process that resulted in the appointment of the second respondent as Deputy Principal at Amadlelo Aluhlaza Secondary School.
BACKGROUND TO THE DISPUTE
The applicant, Mr Stanley Wilson applied for the position of Deputy Principal at Amadlelo Aluhlaza Secondary. The applicant has been employed by the first respondent since 18 January 2018. He is currently a Departmental Head at Ndlela Secondary School. He was shortlisted and interviewed for the Deputy Principal post at Amadlelo Aluhlaza Secondary School. The second respondent was appointed in the position on 01 October 2025. The applicant has declared a dispute for unfair labour practice relating to promotion and he seeks compensation as relief. The first respondent disputes that there was an unfair labour practice relating to promotion in this matter.
The following issues were recorded as issues that are common cause between the parties:
8.1 The applicant was rated number 2 in order of preference in the interview process.
8.2 The second respondent was appointed in the post of Deputy Principal at Amadlelo Aluhlaza Secondary School, with effect from 01 October 2025.
The following issue was recorded as the issue in dispute between the parties:
9.1 Whether the interview process was procedurally and substantively fair.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr Stanley Wilson, testified under oath briefly as follows:
He has seventeen years’ experience as an educator, and he has been a Departmental Head since 2016.
He was shortlisted and interviewed for the position of Deputy Principal at Amadlelo Aluhlaza Secondary School, but he was not appointed in the position.
The appointment of the second respondent in the position was unlawful. The PAM provides that the SGB should make a recommendation on who should be appointed in the position. The Interview Committee had recommended candidates, and he(the applicant) was one of the recommended candidates.
The interviews appeared to have been staged as it even started late.
His non-appointment in the position affected him emotionally, psychologically and socially.
Under cross-examination, Mr Wilson testified that the second respondent did not meet the curriculum needs of the school. He on the other hand has languages and computer subjects.
He reiterated that the SGB was required to make recommendations for appointment, and that if this was done, he would have been recommended for appointment in the position as he met the requirements for appointment.
THE FIRST RESPONDENT`S CASE:
The first respondent’s first witness, Mr Bongani Christian Ntshalintshali , testified under oath briefly as follows:
He was a panel member in the interview process of the position of Deputy Principal at Amadlelo Aluhlaza Secondary School on 12 August 2025. Three candidates were recommended but the panel did not get the opportunity to send the names to the School Governing Body (SGB) for its recommendations, as required.
He has been a member of the SGB at the school since 2024.
There was no report from the circuit about the appointment. The SGB became aware of the appointment when an appointment letter was presented.
Mr Motha who had represented the Circuit Manager in the interview process had taken the files after the interviews. He had told the panel that the Circuit Manager was waiting for the files.
The interview process was not fair. The school is an MST (Maths, Science and Technology) School. The second respondent did not have MST subjects. The school needed to appoint someone who would teach the subjects, but the second respondent does not teach these subjects.
Under cross-examination, Mr Ntshalintshali confirmed that he was a scriber on the day of the interviews.
He reiterated that the SGB had not made its recommendations on the position as Mr Motha had taken the files after the interviews.
The first respondent’s second witness, Ms Ntombikayise Tilla Nkosi, testified under oath briefly as follows:
1. She is an SGB member from the teacher component at the school.
2. The SADTU representative had objected to the criteria that was set in the shortlisting process. This led to candidates who did not have the required subjects being shortlisted.
3. The process was not fair as the SGB was not afforded the opportunity to make recommendations as provided in paragraph B5 of the PAM. The SGB would have considered the curriculum requirements of the school when making recommendations.
4. The SGB did not raise concerns after the process as they had done so in the past but had not been given any feedback.
5. Under cross-examination, Ms Nkosi reiterated that the SGB had not raised the issue of not having made recommendations with the MEC. She further reiterated that the appointment of the second respondent was not in line with the curriculum needs of the school.
The first respondent’s third witness, Mr Sonnyboy Emmanuel Coka, testified briefly under oath briefly as follows:
He is the SGB chairperson. He participated in the interview process of the post of Deputy Principal at Amadlelo Aluhlaza Secondary School.
After the interview process, the representative of the Department informed them that the Circuit Manager, Mr Luthuli was waiting for the documents. They had expected that they would be able to sit as the SGB the next day to make recommendations, but they were not provided with the documents. They later heard of the appointment of the second respondent as Deputy Principal.
Mr Motha who was representing the Department in the process did not perform his role of advising and had not said much in the process.
The process was unfair. The SGB was not informed of the decision to appoint but only saw the second respondent working in the position. The SGB views the appointment as wasteful expenditure as the incumbent will not assist the school. The school requires someone who would teach the subjects offered at the school.
Under cross-examination, Mr Coka testified that he was the chairperson of the interview committee for the position of Deputy Principal at Amadlelo Aluhlaza Secondary School.
He reiterated that the SGB did not have the meeting where recommendations for appointment were to be made to the Head of Department or District Director. Had the SGB been afforded the opportunity to make the recommendations, they would have done so in line with the curriculum needs of the school. The first respondent’s fourth witness, Ms Hermina Kwetlane Motau, testified briefly under oath briefly as follows:
She is the Human Resources Deputy Director for the Gert Sibande District. Her office had prepared the memorandum for the appointment of the second respondent in the position of Deputy Principal at Amadlelo Aluhlaza Secondary School.
The SGB had signed the final score sheet. That is what guided HR to prepare to memorandum for appointment. She confirmed that the final leg of the interview process which required recommendations from the SGB was not done.
Under cross-examination, Ms Motau confirmed that the step outlined in paragraph B5. 4. 12 of the PAM which provides that the panel ranks the candidates in the order of preference and submits this to the SGB together with a brief motivation for the SGB’s recommendation was not taken in this case. She confirmed that a lot of appointments in the district were made without the SGB’s recommendations.
She reiterated that the memorandum by HR was prepared based on the final score sheet. She said that this was regarded as the recommendation. She confirmed that there was no ratification in the process. Closing Arguments
In closing, the first respondent submitted that the evidence that was presented in the arbitration process demonstrated that the prescribed procedure was not fully complied with when the appointment in this case was made. The SGB’s evidence showed that the PAM provision that the Interview Committee must, at the end of the interviews, rank candidates in order of preference, together with a brief motivation, and submit this to the SGB for their recommendations to the relevant employing department. The SGB’s testimony that procedure was not followed is in line with the Kimberly and Douglas judgements. The commissioner should apply her mind and make the appropriate decision.
The applicant did not submit closing arguments.
ANALYSIS OF EVIDENCE AND ARGUMENTS
I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
The applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995, which provides as follows: 186 Meaning of dismissal and unfair labour practice (2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
employee involving-

(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

The applicant’s case is based on allegations that the first respondent has committed unfair labour practice relating to promotion against him, in that, the second respondent was appointed in the position of Deputy Principal at Amadlelo Aluhlaza Secondary School, without the first respondent having followed proper procedure in the recruitment and selection process.
The applicant led evidence that that the Interview Committee in the post in question did not follow proper procedure. According to the applicant, the Interview Committee did not conclude the interview process, the Committee did not comply with paragraph B5.4.12, which provides that “ At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit this to the SGB for their recommendations to the relevant employing department.”
The applicant contended that had the Interview Committee submitted the rank of candidates in order of preference, with a motivation to the SGB, the SGB would not have recommended the second respondent for appointment as he did not meet the curriculum needs of the school which are Maths, Science and Technology. It was further the contention of the applicant that he stood a better chance of appointment as he met the curriculum needs of the school.
Strange enough, the first respondent’s majority of witnesses did not dispute the allegation by the applicant. Three of the witnesses who are part of the SGB and had set in the interview process confirmed that the Interview Committee did not submit its recommendations to the full SGB for it to make recommendations to the District Director. The evidence of Mr Ntshalinthsali, Ms Nkosi and Mr Coka was that after the interviews, Mr Motha who was the representative for the department was in a hurry to get the documents to the Circuit Manager. The three witnesses further testified that the process of the SGB making recommendations was not done and that the appointment of the second respondent, without the SGB’s recommendations, was unfair.
Mr Nthslintshali, Ms Nkosi and Mr Coka corroborated each other and all voiced their dissatisfaction with the conduct of Trade Union Representatives who always seek to influence interview processes and always threaten to lodge disputes if things do not go their way. The three witnesses averred that what happened in the interview process for the position of Deputy Principal at Amadlelo Aluhlaza Secondary School in 2025 was not the first time that procedure was flouted and that when they had raised their concerns in the past nothing was done, hence they did not raise their concerns in this process.
Ms Motau, the fourth witness for the first respondent testified that the procedure that was followed in the appointment of the second respondent is the common procedure that has always been followed by the first respondent. Ms Motau, however, did not dispute that the PAM required that the Interview Committee’s recommendation be submitted to the SGB for its recommendation to the department, before an appointment could be made.
Section 6(2) of the Employment of Educators Act 76 of 1998 provides that the appointment, promotion or transfer of an educator shall be made, in the case of a provincial department of education, by the Head of Department, subject to the provisions of this chapter, the LRA and any collective agreement concluded by the ELRC, in accordance with the procedure and such requirements as the Minister may determine. Subsection (3) provides as follows: “ Any appointment, promotion or transfer to any post on the educator establishment of a public school or a further education training institution, may only be made on the recommendation of the governing body of the public school or the council of the further education and training institution, as the case may be, and , if there are educators in the provincial department of education concerned who are in excess of the education establishment of a public school or further education and training institution due to operational requirements, the recommendation may only be made from candidates identified by the Head of Department, who are so in excess and suitable for the post concerned.”
The above provisions are in line with paragraph B.5.4.12 of the Personnel Administrative Measures (PAM), which provides as follows:
“At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit this to the SGB for their recommendation to the relevant employing department.”
33. The Supreme Court of Appeal in Kimberly Junior School and Another v Head of the Northern Cape Education Department and Others (278/08) [2009] ZACSA 58; 2010(1) SA 217 (SCA) dealt with the procedural aspect of promotions and appointments as per the provisions of section 6 of the Employment of Educators Act. The Court found in this case that the recommendation by the SGB is an essential prerequisite for the appointment of a school principal of a public school by the first respondent in terms of section 6(3) of the EEA. Based on the non-compliance with this prerequisite, the SCA set aside the appointment of the Principal which was made by the Head of the Department.
32. The evidence led in this matter has demonstrated that the respondent did not follow the correct procedure as outlined in section 6(3) of the EEA, read with clause B. 5.4.12 of PAM. It is common cause that the Interview Committee did not submit its recommendation, with a brief motivation, to the SGB for the latter to make its own recommendations to the District Director, being the delegated authority in this instance.
33. It is further common cause that the second respondent, Mr Mthombeni did not meet the curriculum needs of the school. Mr Mthombeni who has been joined to this process elected not to participate and he could therefore not present his side. The evidence by both the applicant and the first respondent that Mr Mthombeni did not meet the curriculum requirements of the school and that his appointment was without proper procedure having been followed has not been disputed.
In any unfair labour practice relating to promotion dispute, the onus rests with the employee to prove, on a balance of probabilities that the employer committed an unfair labour practice by not promoting him. The applicant must show through evidence that he was the best candidate for the position and that the decision to prefer another candidate over him was unfair. The employer is on the other hand also required, when challenged in promotion disputes, to prove that it acted fairly and in good faith in the process that excluded the applicant from promotion. This principle was confirmed by the Labour Court in Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT.
The Labour Appeal Court in Department of Rural Development & Agrarian Reform, Eastern Cape v GPSSBC and others (2020) 41 ILJ 1321(LAC) cautioned commissioners to be reluctant to interfere with an employer’s decision to refuse promotion. The court held that only where 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. I find in this case that the first respondent’s failure to follow prescribed procedure when appointing the second respondent is assailable as it is unfair.
The applicant sought compensation for the unfair labour practice by the first respondent. I am however of the view that the appropriate remedy in this case is the setting aside of the appointment of the second respondent, to allow the first respondent to start the process afresh and to do it correctly. I am guided in this regard by the decision of the Labour Court in Transnet SOC Limited v UNTU obo Coetzee and Others (JR257/19) [2021] ZALCJHB 240 where the Court set aside the promotion of two candidates who did not meet the requirements of the post. The Court found that the company had breached its own policy when appointing these candidates. Award
The first respondent, the Department of Education of Mpumalanga has failed to comply with proper procedures in the appointment of the second respondent, Mr RS Mthombeni. The decision by the first respondent constitutes an unfair labour practice relating to promotion against the applicant, Mr Stanley Wilson.
The appointment of the second respondent, Mr R Mthombeni as Deputy Principal of Amadlelo Aluhlaza Secondary School is hereby set aside. The first respondent must start the recruitment and selection process afresh.