---
title: "13 October 2026 – ELRC183-26/27NC"
description: "Commissioner: Zoliswa Taba Case No: ELRC 183-26/27NC Date of Award: 12 October 2026 In the ARBITRATION between: RRAMATSHEGO MACBETH MOTSHABI APPLICANT And NORTHERN CAPE DEPARTMENT OF EDUCATION 1ST RESPONDENT AMOGELANG MOTHUSI 2ND RESPONDENT ELRC 183-26/27NC ARBITRATION AWARD Details of hearing…"
url: "https://elrc.org.za/docs/13-october-2026-elrc183-26-27nc/"
updated: "2026-10-13"
category: AWARDS
---

# 13 October 2026 – ELRC183-26/27NC

Commissioner: Zoliswa Taba
Case No: ELRC 183-26/27NC
Date of Award: 12 October 2026

In the ARBITRATION between:

RRAMATSHEGO MACBETH MOTSHABI APPLICANT

And

NORTHERN CAPE DEPARTMENT OF EDUCATION 1ST RESPONDENT

AMOGELANG MOTHUSI 2ND RESPONDENT

ELRC 183-26/27NC ARBITRATION AWARD

Details of hearing and representation

1. The present dispute between the Applicant and the 1st Respondent was arbitrated in terms of clause 17 of the Education Labour Relations Council (henceforth referred to as “the ELRC”) Constitution read with section 138 of the Labour Relations Act 66 of 1995, as amended (‘the LRA’).
2. The arbitration hearing was set down initially on 6 August 2026. The matter could not continue as a joinder ruling had to be issued. On 4 September 2026, the arbitration was postponed due to the 1st Respondent’s representative being incapacitated. The arbitration hearing was finally heard and completed on 2 October 2026 through MS Teams platform. Parties submitted their closing arguments on 08 October 2026.
3. Mr A. Leboko, the 1st Respondent’s labour relations official appeared for the 1st Respondent. Mr A. Motsholathebe, a trade union representative from the trade union, South African Democratic Teacher’s Union (SADTU), attended the proceedings and represented the Applicant. The 2nd Respondent represented herself. `The issue to be determined`
4. I am called upon to decide whether the 1st Respondent committed an unfair labour practice relating to promotion against the Applicant when it did not shortlist him and consequently, not appoint him. `The background to the dispute`
5. The Applicant referred an alleged unfair labour practice dispute relating to promotion after Ms A. Mothusi was appointed in the position. The following issues were common cause between the parties:
   • The Applicant was appointed by the 1st Respondent on 01 January 2019 as a PL1 educator at Batlharotlhaping secondary school in Mothibistad.
   • The Applicant earns a salary of R 387 423.00 per annum.
   • The Applicant applied for a PL2 Departmental Head post, number 921, which required grade 10, 11 and 12 in Economics and Business studies, and three years of teaching experience.
   • The post was advertised at Batlharotlhaping High School.
   • The Applicant was shortlisted and invited for an interviews on 22 October 2025 through an email. Interviews were meant to take place on 29 October 2025, but such interviews never took place as planned.
   • The 1st Respondent, through a letter dated 22 October 2025, informed the job applicants through their school management and trade unions of the suspension of the shortlisting process.
   • As per the letter of 22 October 2025, the reason for the suspension of the process was that it was detected that the qualifications of those who applied through the e-recruitment platform were omitted. Such omission had to be corrected to allow schools to have access to the complete and accurate information required to make fair and compliant shortlisting decisions.
   • The shortlisting was finally done on 30 October 2025 and the interviews took place on 07 November 2025.
   • The Applicant was not shortlisted on 30 October 2026.
6. The Applicant testified on his behalf. Although the 1st Respondent intended to call three witnesses, only two witnesses were called and the third one was withdrawn. Ms A. Mothusi ( the successful candidate) and Mr K. Onewang (the principal) testified for the 1st Respondent. The arbitration was manually and digitally recorded. What appears in this award is only an analysis of evidence relevant to the issue in dispute.
7. The parties’ testimonies and arguments are a matter of record and have been considered in coming to a final decision. To avoid repetition of evidence, the parties’ testimonies and arguments are included within the analysis of evidence.

Analysis of evidence and arguments
8. An unfair labour practice is defined in section 186(2) of the LRA as
“…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…”

1. In this matter, it is common cause that the Applicant was initially shortlisted, but the process was suspended and was redone again. It is common cause that reasons for suspending the process were communicated to the Applicant through his trade union and his school management team. The Applicant’s case is not the unfair suspension of the process but the failure of the 1st Respondent to shortlist him again after the process was uplifted.
2. The Labour Appeal Court in Department of Higher Education and Training v GPSSBC & Others , held as follows:
   “Par \[9\] - To succeed in an unfair labour practice claim related to promotion usually requires an employee to prove that they were not given a fair opportunity to compete for a post. This may involve evidence that the process was unfair and that despite the employee having the necessary experience, ability and technical qualifications for the post, an unfair appointment decision was taken…”.
3. What therefore needs to be determined first in this matter is whether the Applicant met the requirements as stipulated in the advertisement. If such is proved, the 1st Respondent would then have a case to answer as to why the Applicant was not shortlisted. On the other hand, if it is found that the Applicant did not meet the requirements as advertised and that the successful candidate met such requirements, then this would be the end of the inquiry.
4. The onus is on the Applicant to prove that failure to shortlist and interview him constitutes an unfair labour practice relating to promotion.

Did the Applicant meet the requirements of the post as advertised?

1. In this case, it is common cause that the advertisement required job applicants to have experience in the following subjects and grades: Grade 10, 11 and 12 in Economics and in Business studies, 3 years teaching experience and a SACE accreditation.
2. It was the Applicant’s testimony that he held a qualification in “Baccalaureus Educationis: (FET): Specialisation: Economic and Management Sciences”, had 3 years teaching experience and was registered with SACE. It was his testimony that although his qualification did not indicate business studies anywhere, the fact that his transcripts indicated business management meant that he was qualified to teach business studies. It was further his testimony that prior to being a qualified educator, while doing his practicals, he taught grade 10 business studies and economics, therefore meeting the requirements of the post.
3. During his cross examination, the Applicant conceded that at the time the second shortlisting was done, when candidates attended interviews and when the successful candidate was appointed, he did not have experience in teaching grade 10, 11 and 12 business studies as he never taught the grades as a qualified educator. Ms Mothusi’s testimony that she had taught business studies and economics for senior phase since 2022 was not disputed by the Applicant. Her whole testimony that she met all the minimum requirements as advertised was not disputed as no cross examination was done on her. Her testimony remained unchallenged.
4. Furthermore, the Applicant conceded during cross examination that Ms Mothusi had acted in the position she was appointed in at the time when the position was advertised. He further conceded that Ms Mothusi had over 3 years teaching experience, registered with SACE and held a teaching qualification in Business studies.
5. Although the Applicant maintained that since he was shortlisted initially that meant that he met the requirements of being shortlisted again, he did not dispute Mr Onewang’s testimony that he was excluded from the second shortlisting as there were now more suitable candidates, similar to Ms. Mothusi, who were considered after the omission was corrected.
6. Page 1 of the 1st Respondent’s bundle of documents clearly indicates the minimum requirements to be met by all job applicants. These requirements on page 1 of the document were not disputed by the Applicant. It is indicated therein that candidates must have teaching experience for grade 10, 11 and 12 for both economics and business studies. Whether the Applicant’s qualification meant that he was eligible to teach business studies and economics is neither here nor there. Even if it were to be accepted that he was qualified to teach both subjects, what cannot be ignored is that he did not meet the minimum requirements as per the advertisement, of teaching the three grades for both subjects. As per Mr Onewang’s undisputed testimony, the position in question is a promotional post which required the successful candidate to monitor both business studies and economics studies. Mr Onewang’s testimony that the Applicant never taught all three grades for business studies was not disputed.
7. Therefore, based on the evidence before me, although the Applicant may have a teaching qualification and 3 years teaching experience, he did not meet all the requirements of the advertised position as he failed to produce any evidence that he had indeed taught the three grades and both subjects as per the minimum requirements of the advertised post.
8. On the other hand, it was the undisputed testimony of Ms Mothusi that she had over 3 years teaching experience, had taught all the three grades and both subjects; and that she acted in the advertised position when the post was advertised. It was never the Applicant’s case that Ms Mothusi was not a suitable candidate for the position. Moreover, when the Applicant was asked if it was his claim that he was the best candidate for the position, his answer was no.
9. The Applicant failed to identify any unfair criteria which was used by the 1st Respondent to exclude him from the shortlisting, which was different from the advertised requirements or that inconsistent rules were applied between candidates. No evidence was provided that the 1st Respondent acted in bad faith when it excluded him from being shortlisted or interviewed.
10. In the light of above and after considering all evidence before me, it is my finding that the Applicant failed to prove that there was an unfair labour practice committed against him. `Award`
11. The Applicant, Rramatshego Macbeth Motshabi failed to prove that the 1st Respondent, the Northern Cape Department of Education, committed an unfair labour practice.
12. The matter is dismissed.

Panelist: Zoliswa Taba Signature: