14 July 2025 – ELRC1190-24/25GP

Panellist: Themba Manganyi
Case No.: ELRC1190-24/25GP
Dates of Hearing: 10 April 2025 and 05 June 2025
Date of Arguments: 12 June 2025
Date of Award: 14 July 2025

In the Arbitration between

SALIPSWU OBO MAHLAKO TLADI APPLICANT

and

HEAD OF DEPARTMENT: GAUTENG DEPARTMENT OF EDUCATION
RESPONDENT

Applicant’s representative: Mr Linda Skhosana

Respondent’s representative: Mr Sehlare Seshibe

Details of hearing and representation

This is an arbitration award in terms of section 138(7) of the Labour Relations Act of 1995 (“the LRA”), as amended, emanating from an alleged unfair labour practice dispute (section 186(2)(a) of the LRA) referred to the Education Labour Relations Council (“the Council”). The arbitration proceedings were conducted on 10 April 2025 and 05 June 2025 at the Gauteng East District Office in Springs.
Mr Linda Skhosana (“Mr Skhosana”), an official from SALIPSWU, represented the applicant, Mr Mahlaku Tladi (“Mr Tladi”). Mr Sehlare Seshibe, the Labour Relations Officer, represented the respondent, the Head of Department: Gauteng Department of Education.
Parties submitted bundles of documents into the record and the contents thereof were not in dispute. The applicant’s bundle was marked as Bundle A and the respondent’s Bundle was marked as Bundle A. At the end of the proceedings, parties requested to submit written heads of arguments on 12 June 2025 and they duly complied.

Issue to be decided

I am required to determine whether the respondent subjected the applicant to an unfair labour practice as contemplated in section 186(2)(a) of the LRA – promotion.

Background

The applicant is employed as a PL1 Educator and he is attached to Kgalema Primary School. The respondent advertised a Departmental Head post (GE24ED1088) for Kgalema Primary School post in 2024. The applicant applied for the post and he was shortlisted for an interview. He was interviewed on 29 August 2024. The applicant contends that he was interrupted in the middle of the interview by a union observer and that he suffered prejudice in that he could not answer questions to the best of his ability. Further to that, he contended that the interview panel was properly constituted and that three of the panel members
Another candidate was appointed in November 2024 in the impugned post. The applicant contends that had it not been for the interruption, he would have been appointed. However, he seeks protected promotion in the event that I find in his favour.

Summary of evidence and arguments

The applicant’s case

Mr Tladi testified under oath and stated that during his interview on 29 August 2024 when he was responding to question 3, the union observer raised her hand and said the panel was not fair by allowing him to proceed with the interview after the allocated time has lapsed. The panel chairperson (Mr Bernard Mokabane) did not reprimand the observer. He stated that he felt bad, disoriented, dejected and devastated by the silence of the chairperson. He testified that he raised his unhappiness with Mr Patrick Monareng, the SGB chairperson and interview panel secretary when he was ushered out of the school after the interview.
He testified that he went to the District Office on 23 August to seek advice on the process that he must he follow to interdict the interview process, but he was told that he cannot interdict the interview process. He went to the District Office again on 04 September 2024 and he met with the same official that he met on 23 August 2024. The official told him that there were intentions to institute disciplinary procedures against him on allegations that he tried to influence the interview panel members. He testified that he lodged a grievance for the incident that occurred during his interview. However, he did not receive the grievance outcome.
He further testified that he attended a disciplinary hearing, but there were no charges preferred against him and he was also not given the outcome of the disciplinary hearing. He referred to the letters on page 12, 13 and 14 of Bundle A and stated that he was shocked when he was furnished with these letters of complaints against him the panel members. He felt that these panel members ought to have recused themselves from the interview panel. He refuted the allegations that are detailed in the said letters and stated that he never spoke to any of the panel members. He testified that he believed that he was the most deserving candidate and that he was well prepared for the interview. He prayed for protected promotion.
Under cross examination, he conceded when it was put to him that the grievance hearing outcome was delivered to the school and it was received by the SGB on 30 October 2024, but because he was hospitalized, he did not receive the outcome then. He stated that he followed up for the grievance outcome with Mr Mvandaba Zathu (Page 17 of Bundle A), but he did not find any joy. With regard to the disruption by the observer during the interview, he referred to collective agreement 01 of 2021, clause 10.3, 10.8 and 10,9 and stated that the observer must not seek the attention of the chairperson in the presence of the candidate. He stated that the observer said that he has exceeded his allocated time. He conceded that he was allowed to answer all the interview questions. He confirmed that there were no bad feelings between him and the three panel members who wrote letters complaining about his conduct prior the interviews. He stated that these panel members were supposed to recuse themselves because they were not going to be objective.

The Respondent’s case

Mr Bernard Mokabane (“Mr Mokabane”) testified under path and stated that he was the Principal at Kgalema Primary School since January 2025 and that he was a member of the School Governing Body (“the SGB”) for one term. He stated that he was the chairperson of the panel in the recruitment process of the Departmental Head position. He testified that the observer did not interrupt Mr Tladi. The observer cautioned him about the time lapse. However, Mr Tladi was allowed to continue with the interview. He stated that Mr Tladi was interviewed for about forty five minutes to one hour. He testified that after the interview, Mr Tladi raised his concern about the being overlooked for the acting position, but he did not raise any concern that he was interrupted.
Under cross-examination, he stated that each candidate was allocated twenty minutes for the interview. He confirmed that the minutes were a true reflection of what transpired during the interviews. He confirmed that the candidates would have been able to answer all the questions in the allocated twenty minutes. He stated that he was aware of the letter that Mr Tladi wrote to the School Management Team (“the SMT”). However, he was not aware of the letter on page 15 of Bundle A that Mr Tladi wrote. He did not recall if the meeting that Mr Tladi requested with the SMT was convened or not.
Mr Patrick Monareng (“Mr Monareng”) testified under oath and stated that he was the SGB parent component member and that he was the scribe during Mr Tladi’s interview. He stated that he did not observe any irregularities during the interviews. He testified that the observer raised her hand to caution the chairperson that Mr Tladi has exceeded his allocated time. However, Mr Tladi was not stopped. The chairperson continued to ask questions. He stated that all the candidates were allocated twenty minutes for the interview. However, Mr Tladi was interviewed for about forty minutes to an hour.
Under cross-examination, he stated that he knew that the observer was supposed to ensure that the process was fair. Regarding his letter on page 12 of Bundle A, he stated that he did not receive any feedback from the District Office. He testified that he typed this letter alone and Ms M.P. Mohlala and Mr P. Mohale requested him to assist them in writing their letters on page 13 and 14 of Bundle A respectively. He submitted that he did not recuse himself from the panel after Mr Tladi approached him because he did not receive any feedback form the District Office and that he did not want to delay the recruitment process. He stated that all the candidates were treated fairly and equally and that no candidate was prejudiced.
Ms Nokuthula Mhlambi (“Ms Mhlambi”) testified under oath and stated that she was the observer from SADTU during the interview process. She stated that during the interview, Mr Tladi exceeded his allocated time and he was interviewed for about forty five minutes to one hour. She stated that she raised her hand to caution the chairperson. However, the chairperson did not acknowledge her. Instead, he continued with the interview process. She disputed that she prejudiced Mr Tladi when she raised her hand and stated that Mr Tladi was instead more privileged than other candidates. She submitted that the process was conducted fairly. She refuted that she interrupted Mr Tladi when he was interviewed.
Under cross-examination, she confirmed that she was trained to be an observer. She further confirmed that Mr Tladi over stayed his allocated time and that Mr Tladi was interviewed for about 45 minutes to one hour. She disputed that she stopped the interview as alluded in paragraph 3 page 6 of Bundle R.

Analysis of evidence and arguments

This is an arbitration award issued in terms of section 138(7) of the LRA. Therefore, these are brief reasons for my findings and not a verbatim account of the evidence that was adduced in these proceedings. However, it must not be misconstrued that I did not consider all the evidence. I have also considered the written closing arguments.
Section 185(b) of the LRA prescribes that every employee has the right not to be subjected to an unfair labour practice and section 186(2)(a) of the LRA defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving 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.
In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others , it was held that:

The overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.

The Court held in the National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others that fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable, it needs to be demonstrated that the employer acted irrationally or arbitrarily, was bias or failed to apply its mind or had exercised his discretion arbitrarily or based it on any wrong principle.
It is common cause that Mr Tladi was shortlisted and interviewed. Mr Tladi challenged the composition of the panel in that there was a couple in the panel. He also challenged that the observer interrupted him whilst he was busy answering questions.
On the issue of the composition of the panel members, it was clarified that Ms Monareng (a spouse to Mr Monareng) was not part of the panel, but she was responsible for ushering candidates into the interview room. This challenge was not taken any further after this clarification. I therefore conclude that the applicant abandoned this challenge.
It is not in dispute that the union observer, Ms Mhlambi, raised her hand when Mr Tladi was busy responding to the third question of the five interview questions. However, the chairperson, Mr Mokabane, did not recognize her. All the respondent’s witnesses testified that Ms Mhlambi did not utter a word after she raised her hand. It was only Mr Tladi who testified that Ms Mhlambi spoke after she raised her hand stating that his allocated time has lapsed. I was thus confronted with two conflicting versions in this regard. In the Stellenbosch Farmers’ Winery Group Ltd judgment the Court enunciated three factors that a commissioner must grapple with when confronted by two conflicting versions. That is, the credibility of witnesses, the reliability of witnesses and the probability of the respective versions.
It was not in dispute that Mr Tladi answered all five questions of the interview and that he spent about forty five minutes for the interview whilst only twenty minutes was allocated to all the candidates. It therefore cannot be true that Ms Mhlambi stopped the interview process. Could Ms Mhlambi’s gesture somewhat have distracted Mr Tladi’s trail of thoughts in responding to the questions?
Collective Agreement 1 of 2021 in clause 10 details the roles of the union observer. Clause 10.3 prescribes that an observer may be present at all shortlisting and interview activities. An observer is not allowed to interfere with the work and proceedings of the shortlisting and interview committee. Clause 10.8 prescribes that observers have the right to ask and raise questions with the chairperson, but may not provide any advice on how to correct activities found to be mistaken and may not disrupt the process. Clause 10.9 stipulates that if an observer needs to draw the attention of the interview committee to a violation of any prescribed process and / or procedure, he / she must direct his / her observation to the chairperson of the panel. Such communication may not be done during the selection process and / or in the presence of an application being interviewed for an advertised post.
In this case, the observer (Ms Mhlambi) gestured to the chairperson to signal that Mr Tladi has exceeded his allocated time. It must be noted that there was no time-keeper that was specifically allocated for that role during the interview process. It was Mr Mokabane’s testimony that they relied on the clock that was in the interview room to keep time for candidates. It is therefore my considered view that even one of the panel members would have gestured to indicate that a candidate has exceeded their allocated time. Then it would mean that even this gesture from any of the panel members would have disrupted Mr Tladi. After the interview, Mr Tladi did not raise any concern regarding the interview. The concerns that he raised were related to his dissatisfaction about the acting position. In my view, the extra twenty five minutes or so that was allocated to Mr Tladi made up for Mr Mhlambi’s destruction.
Mr Tladi also raised an issue about the letters that the three panel members wrote to the District Office complaining about his conduct prior to the interview process. Mr Monareng conceded that he authored the letter on page 12 of Bundle A. According to Mr Monareng, when he called Mr Tladi to collect his invitation letter for an interview, Mr Tladi told him how the school management did not like him and that he was the best Departmental Head that the school has ever had. The other two SGB members told him that Mr Tladi approached them as well and they requested him to assist them to write letters. He assisted them to write the letters on page 13 and 14 of Bundle A. hence, the glaring resemblance. Mr Tladi disputed that he has ever approached any SGB member before the interview.
It is common cause that Mr Tladi lodged a grievance after the interview process. The grievance hearing was convened and an outcome thereof was delivered to the school on 30 October 2024 in the absence of Mr Tladi, because he was hospitalized. So it cannot be correct that there was no outcome of his grievance. I do not entirely agree with the Grievance Committee’s findings. It is incorrect that the interview was stopped. Mr Tladi conceded that he was afforded the opportunity to answer all the interview questions. I also do not agree with the assertion that there were four interview questions as they were five questions and that it was justifiable for the observer to stop the process. The only finding that I am in agreement with is that Mr Tladi was not prejudiced during the interview process.
I was impressed by the respondent’s witnesses. Their version was consistent during their examination in chief and under cross examination. Their testimony was corroborative. On the other hand, I do not find Mr Tladi’s version probable particularly with regard to the complaints by Mr Monareng, Ms Mohlala and Mr Mohale. It was not disputed that Mr Tladi has never before conversed with Mr Monareng until he was invited for the interview. I therefore find that there was no motive for Mr Monareng to fabricate this story.
Clause 32 of Collective Agreement no 3 of 2016 stipulates that an employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment. After having considered all the evidence, I find that Mr Tladi did not succeed to prove his case.