Case Number: ELRC907-25/26EC
Panelist: Hadley Saayman
Date of Award: 13 July 2026

In the ARBITRATION between

SAOU obo Len Attie Prinsloo

And

Department of Education – Eastern Cape
(1st Respondent)

Jerome Kock
(2nd Respondent)

Applicant’s representative: Ms A Van Wyk

Applicant’s address: venitavw@saou.co.za

1st Respondent’s representative : Mr Garth Jacobs
Garth.Jacobs@ecdoe.gov.za



2nd Respondent’s representative :

Mr Anton Adams
antona@naptosa.org.za

DETAILS OF HEARING AND REPRESENTATION

1. This matter was set down for arbitration in terms of Section 186(2)(a) of the Labour Relations Act (LRA) and concluded on 12 June 2026. The Applicant, Mr. Len Attie Prinsloo was represented by Ms. Venita Van Wyk a Union official of SAOU. The 1st Respondent, the Department of Basic Education-EC was represented by Mr. Garth Jacobs, the Acting CMC Head, Humansdorp. The 2nd Respondent and incumbent, Mr. Jerome Kok was represented by Mr. Anton Adams, a Union official of NAPTOSA. The parties agreed to submit written closing arguments by 25 June 2026, which the applicant and 1st respondent has done and were considered. ISSUE TO BE DECIDED
2. I am required to determine whether the 1st respondent committed an unfair labour practice as
   contemplated by Section 186(2)(a) of the LRA. BACKGROUND TO THE ISSUES
3. The applicant, Mr. Prinsloo applied for a vacancy of a Deputy- Principal (post-level 3) at Humansdorp Senior Secondary School, which was advertised as post number 870 in Bulletin-Volume 2 of 2025. The applicant was shortlisted and interviewed. The 2nd respondent, Mr. Jerome Kok was ranked number one (1), recommended and appointed as Deputy- Principal.
4. The applicant is currently a Departmental-Head (post-level 2) at the above-mentioned school. He is an
   educator at the same school since 1992. The applicant claims that he was treated unfairly and that he
   was supposed to be appointed as Deputy-Principal as he was instructed by the school principal to perform
   the duties as Deputy-Principal, which he has done for about two years.
5. The relief sought is that he be appointed in the position as Deputy-Principal, alternatively compensation. SURVEY OF EVIDENCE AND ARGUMENT
6. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
   Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand. APPLICANTS EVIDENCE
7. The applicant, Mr Len Prinsloo testified that he was invited for an interview on 21 August 2025. His interview was scheduled for 11:30am. He arrived at the school at about 09:30 am. He describes a chaotic situation where the governing body initially decided not to proceed with the interviews. The school principal informed him that there was a challenge, and the interviews needed to be postponed. However, he was requested to stay and wait. He sat and waited in his motor vehicle.
8. He states that initially, he was well prepared, but the waiting became increasingly frustrating. He describes
   the situation as very unsettling, with people around the governing body and the principal running around
   chaotically, which created a tense environment. He testified that the reason for the delay was not explicitly
   explained to him. The Chairperson of the School Governing Body and Interview panel, Mr Ben Ruiters
   arrived at the school in late the afternoon. His interview commenced at about 14h42.
9. The interview panel insists to continue with the interviews. He states that initially, he was well prepared, but the waiting became increasingly frustrating. He describes the situation as very unsettling, with people around the governing body and the principal running around chaotically, which created a tense environment.
10. When he entered for the interview, he says they simply welcomed him without explaining the legal implications or the purpose of the interview. It was obvious to him that the position was intended for a specific person, as the questions asked were not fully applicable to the vacancy, and he had to interpret and relate his answers to the position himself. He was able to answer all the questions, although many of them related more to other portfolios.
11. He believes he is the most suitable candidate for the position because he has been doing this work for
    A number of years and has more experience than the other candidates, including Mr. Kock. He feels it is
    unfair that the governing body, some of whom lack knowledge of what is transpiring at the school, are the
    ones deciding who the best candidate is, because his contribution and achievements for the school should carry more weight than the scores given by the panel.
12. Regarding the panel members, there were three parent members and two teachers. The parent members were Mr. Britz, Mr. Ruiters, and Ms. Cornelius. The scores assigned to him by each panel member were: Mr. Ruiters scored him 16, the same as Mr. Kock; Mr. Britz scored him 15; and for Mr. Kock, 18. Ms. Cornelius scored him 16, and she also scored Mr. Kock 18. He believes these scores did not accurately reflect his suitability for the position, and that he deserved more recognition based on his experience and performance.
13. SUMMARY OF APPLICANT’S WRITTEN CLOSING ARGUMENTS

13.1 The Chairperson unilaterally decided to delay the interviews by approximately three hours without
providing any explanation, and no reasons were given to candidates or panel members.

13.2 Candidates were simply told to wait until the Chairperson chose to start the interviews, resulting in a
significant and unexplained delayed.

13.3 The Respondent argued that candidates agreed to proceed after being asked, but this defense is
considered without merit.

13.4 The core issue is whether the interview process was conducted in a fair, lawful, and procedurally proper
manner, not whether candidates verbally consented to continue.

13.5 The delay prevented the applicant from participating at the scheduled time, and the agreement to proceed
does not constitute an informed waiver of their right to challenge the fairness of the process.

13.6 The uncontested three-hour delay likely caused stress, fatigue, frustration, and anxiety, which could
negatively impact applicant’s performance.

13.7 There is no evidence that the Chairperson considered the impact of the delay or took measures to mitigate
its effects on the applicant.

13.8 The Chairperson’s conduct falls short of the standards of fairness, professionalism, and procedural integrity
expected in a public sector appointment process.

13.9 The delay undermines confidence in the integrity and credibility of the process, as fairness must also be
perceivable by the public.

13.10 The Respondent’s argument that applicant forfeited his rights by proceeding, affirming that the delay
constitutes a material procedural irregularity that affects the overall fairness of the interview process.

1st RESPONDENT’S EVIDENCE

14. The 1st respondent called only one witness, Mr. Shaun Felix the Principal of Humansdorp Senior Secondary School. He stated that he has been employed by the Department of Education for 32 years. Throughout his career, he has gained extensive experience with educator recruitment, having participated in various occasions and workshops related to selection and interview processes.
15. He acknowledged his involvement in the recruitment of the Deputy Principal position at Humansdorp Senior Secondary School, as advertised in Bulletin 870 of 2025. His role was in the capacity of the resource manager, where he was responsible for overseeing certain administrative aspects of the recruitment process. The selection panel comprised four members of the School Governing Body (SGB), including two teachers and two parents.
16. In terms of preparations for the interviews, the panel’s process involved posting the advertisement, followed by a staff meeting to brief and educate the panel members. The panel then assembled as a unit to conduct the interviews.
17. Referring to the evidence bundles on page 20, the witness read into the record the list of shortlisted
    candidates, which included Mr. J. Kock, Ms. S.S. Adolph, Mr. A.L. Prinsloo, Mr. F. Jacobs, Ms. R. Pretorius, and Ms. E. S. Botha. On page 23, he explained that these names represent the candidates’ scores at the conclusion of the interview process, which took place on 21 August 2025.
18. The interviews commenced slightly later than scheduled. The candidates were informed of the starting time, and upon arrival, all present candidates confirmed their agreement to proceed by indicating their thumbs-up. The process was conducted in a calm and professional environment, with all candidates being treated equally. The questions were prepared in advance and presented openly to each candidate to ensure transparency and fairness.
19. The scoring results were as follows: Mr. J. Kock received 82 points, Mr. A.L. Prinsloo 80 points, Mr. F. Jacobs 76 points, Ms. R. Pretorius 74 points, Ms. E. S. Botha 70 points, and Ms. S.S. Adolph 59 points. The difference between the top two candidates was only two points.
20. Referring to page 27, the witness identified the specific minute where the scores were rectified, which was later that same day during a formal rectification meeting. He explained that during this meeting, the panel re-presented the scores to ensure accuracy and confirmed that the process was followed correctly. He confirmed that this was a full SGB meeting, and the outcome was that Mr. J. Kock was recommended as the top candidate.
21. Regarding the relationship of the top two candidates to the interview process, the witness described the atmosphere as relaxed, with both candidates presenting themselves well. He noted that Mr. Kock performed slightly better than Mr. Prinsloo on that day. To quantify this difference, he stated that Mr. Kock had an average score of 16.4, compared to Mr. Prinsloo’s 16, resulting in a 0.4-point difference. 2nd RESPONDENT’S EVIDENCE
22. The 2nd Respondent, Mr. Jerome Kok elected not to testify and abide by the evidence of the 1st Respondent.
23. SUMMARY OF THE 1st RESPONDENT’S WRITTEN CLOSING ARGUMENTS

23.1 The Respondent’s evidence showed that the recruitment process adhered to all relevant legislation, policies, and principles of fairness, transparency, and accountability.

23.2 The process was conducted in accordance with the Employment of Educators Act, Personnel Administrative Measures, the ELRC Collective Agreement 1 of 2024, and other applicable regulations.

23.3 Both Mr. Prinsloo and Mr. Kock met the minimum requirements, were shortlisted, interviewed, and given equal opportunities to compete, demonstrating a fair and equitable process.

23.4 The applicant’s qualifications, experience, and acting background did not entitle him to the position; appointment is based on the most suitable candidate, not entitlement.

23.5 The evidence confirmed that the applicant was given a full and fair opportunity to compete, and the selection was made based on objective criteria and scores.

23.6 The delay prior to the interviews was experienced by all candidates equally, with no evidence that the applicant was singled out or disadvantaged.

23.7 There was no causal link between the delay and the outcome of the process; procedural imperfections do not amount to unfairness absent material prejudice.

23.8 The panel followed a structured, fair process by first seeking consensus among members before relying on scores as a tiebreaker, demonstrating balanced decision-making.

23.9 Mr. Kock was identified as the strongest candidate based on meeting all requirements, participating effectively, and achieving the highest score, with narrow margins justifying the selection.

23.10 There was no evidence of bias or ulterior motives; acting experience was considered but does not create an automatic right to appointment, and the decision was rational and fair under the law.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as

meaning inter alia:

(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; …”

25. The purpose of the ELRC Collective Agreement 1 of 2024, is inter alia:

• To provide uniform procedures and selection criteria, as well as structures that will be used in the
selection process for filling vacant and funded educator posts.
• To promote the values of fairness, equity, diversity and transparency in the filing of advertised posts.

26. The scope the Agreement 1 of ELRC Collective 2024 applies to bind the Employer and all Educa-tors
    as defined in the Employment of Educators Act, 1998 (as amended).
27. Fairness requires that the position and interests of both the employee and employer are taken into account
    in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or
    value judgment to established facts and circumstances. In doing so, it must have proper regard to the
    objectives sought to be achieved by the Labour Relations Act, 66 of 1995 as amended (LRA).
28. Under cross-examination Mr. Prinsloo confirmed that he has been employed by the Department since
    1992 and has participated in recruitment and selection processes at schools before, making him famil-iar
    with interviews and their conduct. He acknowledged that there is no automatic right to promotion. Alt-hough
    he performed the duties of a deputy principal for a number of years, as instructed by the School Prin-cipal. He stated that this was a temporary acting appointment, not a formal title, but he performed all the duties associated with the role, including discipline and scheduling, more than what was required. He believed that performing the duties of a deputy principal automatically meant he would be appoint-ed permanently, although he was never formally informed of such an entitlement. He voluntarily applied for the post, was shortlisted, and attended the interview, which he described as a fair opportunity to answer all questions. He confirmed he was not prevented from completing the interview and that he answered all questions asked.
29. Mr. Prinsloo acknowledged that there was a delay before the interview, but he stated he could not speak
    for how other candidates felt. He described feeling anxious but managed to wait patiently, based on his
    experience. He confirmed that he proceeded voluntarily and completed the interview, answering all questions. He emphasized that the position of deputy principal requires the ability to perform under pressure and good communication skills, both of which he possesses. When asked about the interview process, he admitted he did not know how the panel conducted it but noted that his score was 16, very close to Mr. Kock’s score of 16.4, indicating they were more or less equally scored.
30. Mr. Prinsloo believed he answered all questions, did not object to any, and asked for clarifications where
    necessary. He stated that all candidates were asked the same questions and that he was scored by the entire panel. He expressed the view that the scoring was manipulated, although he had no evi-dence to support this claim. He acknowledged that he believed some candidates were better scored than him but stated that no panel member indicated he would not be appointed. He was aware the panel consisted of multiple sections and that the members were supposed to act without bias.
31. He denied having any evidence that the SGB influenced the scoring or that the panel did not thoroughly consider his qualifications and experience. He suggested that the panel merely focused on the inter-view questions. He mentioned allegations by the chairperson, Mr. Ruiters that the department knew what he was doing and permitted Mr. Kock’s appointment, but he denied having any proof of bias or unfair treatment. Mr. Prinsloo also expressed the view that he should be treated specially because of what he has contributed to the school, and he believed that he deserved to be recognized as the best candidate.
32. Finally, he stated that he believed he was the best candidate, and that the process should have re-flected this, but he felt it was unfairly conducted, and he expressed dissatisfaction that his experience and contribution to the school were not adequately considered.
33. Under cross-examination Mr. Felix confirmed that the date and time on page 19 corresponded to 21 August 2025, at 11:30, which was the invitation extended to Mr. Prinsloo for the interview. He ex-plained that the scheduled start time listed on page 20 was 14:42, but the interviews were delayed due to the chairperson arriving late. He admitted that he did not know the specific reason behind the chair-person’s lateness. During the delay, candidates were informed of the situation, and Mr. Felix indicated that, based on his prior experience, waiting calmly in such circumstances is typical. He stated that the chairperson eventually arrived, and the interviews commenced at approximately 13:15. When asked what would have happened if Mr. Prinsloo had refused to continue, Mr. Felix said that it was unfore-seen, but they would have documented the refusal. He also expressed the view that it was unlikely Mr. Prinsloo would have forfeited his opportunity if he had chosen not to proceed.
34. Mr. Felix confirmed that the questions asked during the interview were decided by the panel and be-lieved they were relevant to the deputy principal’s role. He noted that Mr. Kock received a score of 5 from two parent panel members, Cornelius and Britz, for a specific question, which he described as content-rich and deserving of that score. The panel was unable to reach full consensus, with a ratio of 4:1, and therefore resorted to scoring to determine the final ranking of candidates, as recorded in the documentation. During discussions, the panel favoured recommending Mr. Kock, despite the absence of complete consensus. Mr. Felix was unaware that Ms. Jafta did not vote for Mr. Kock. In re-examination, he clarified that the responsibilities of a deputy principal include maintaining discipline, ensuring school safety, monitoring Heads of Department, and overseeing security. He confirmed that the questions asked were relevant to the position and that the panel consisted of five members. He al-so acknowledged that the 4:1 ratio indicated the panel could not reach full consensus, which led them to rely on scoring as the final decision-making method.
35. The assessment of fairness in promotion decisions is fundamentally anchored in a thorough examina-tion
    of both the procedures employed and the justifications presented by those making the decisions. It is
    imperative for employers to conduct themselves in a manner that is both lawful and consistent with the
    established objective standards of fairness. This includes adhering to specific criteria set forth for promo
    tions, as well as their own internal policies. Such adherence serves a critical purpose: it ensures
    that all eligible employees are granted a genuinely fair opportunity to compete for the available posi-tion.
    If an employee is not afforded this fair chance, any conduct that limits such opportunities is likely to be construed as an unfair labour practice, carrying significant legal implications.
36. In the context of pursuing a claim for unfair labour practices associated with promotion decisions, the burden of proof typically rests on the employee. To prevail in such a claim, the employee generally must demonstrate that he was not granted a fair opportunity to compete for the position in question. This often necessitates the presentation of evidence that highlights flaws in the promotional process, showcasing that despite possessing the necessary experience, skill set, and technical qualifi-cations for the role, the employee faced an unjust appointment decision. The crux of such claims often revolves around demonstrating that the decision-making process was marred by unfair practices, re-sulting in a failure to recognize the rightful merits of the employee in question.
37. The resource person, Mr Felix confirmed his familiarity with the ELRC Collective Agreement 1 of 2024, which governs the appointment process. He explained that his role as a resource person was to collect all relevant documentation and ensure that the process was followed correctly. However, he clarified that he did not participate directly in the interviews, nor was he entitled to score the candi-dates or serve as a voting member.
38. When asked about Mr. Prinsloo’s allegation that he failed to inform the panel of Mr. Prinsloo’s acting principal experience, the witness stated he was unaware of that information. No panel member re-quested additional information regarding any of the applicants during the process. He explained that the submissions in the CVs and work experience provided by the candidates were available for the panel’s review.
39. It is admitted as common cause that, in accordance with the written testimonial provided by Mr. Felix on page 80 of the evidence bundle, Mr. Prinsloo possesses thirty-three (33) years of teaching experi-ence. It is further established that he has taught Mathematics Literacy for grades 11 and 12, as well as Computer Applications Technology (CAT) for grades 10 to 12. Additionally, Mr. Prinsloo holds the posi-tion of member of the school’s sports committee and serves as the coordinator of athletics and land-loop activities. He is also responsible for coordinating SASAMS, NSNP, and transport logistics. Accord-ing to the statements contained in Mr. Felix’s testimonial, Mr. Prinsloo is characterized as a hardwork-ing and loyal individual who demonstrates a strong commitment to the school.
40. Mr Felix addressed concerns about technicalities before the interviews, specifically noting that the chairperson arrived late, which caused delays. The interview process started at approximately 13:15, but Mr. Prinsloo’s interview only commenced at 14:42. The panel did ask Mr. Prinsloo if he wished to continue with the interview despite the delay, and he responded affirmatively.
41. Finally, Mr Felix opined that the delay in starting the interview could have had some influence on Mr. Prinsloo’s performance, as the process was significantly delayed and the atmosphere was tense. De-spite the late start, Mr. Prinsloo agreed to proceed with the interview, which he did.
42. Clause 7.9 of the ELRC Collective Agreement 1 of 2024 explicitly mandates that the School Gov-erning Body must maintain accurate and comprehensive records of both the shortlisting and interview processes. Furthermore, clause 7.7 of the same Collective Agreement requires that the School Gov-erning Body return all applications and forward copies of the minutes to the Department of Education. It is undisputed that there are no proper minutes documenting the entire interview process; and a sin-gle, limited one-page document pertaining to the ratification meeting exists. The resource person, Mr. Felix, testified that Ms. C. Jacobs was designated as the scribe; however, no records of the candi-dates’ responses were recorded, which raises significant concerns regarding the reliability and integrity of the scoring and evaluation process. This absence of proper documentation critically undermines the ability to ascertain how the School Governing Body could have arrived at a fair and rational decision during their ratification meeting and subsequent recommendation, thereby compromising the transpar-ency and legality of the process.
43. Furthermore, there were no records of the panel’s motivation for their decisions regarding the candi-dates, as required by clause 7.2 of the Collective Agreement. It was also an undisputed fact that the Chairperson of the interview panel and the School Governing Body arrived late, with the applicant’s interview beginning almost three hours later than scheduled. Although Mr. Felix initially described the delay as “slight,” during cross-examination he conceded that the delay was several hours and that the Chairperson did not provide any explanation for his lateness. In fact, Mr. Felix confirmed that the Chairperson did not want to proceed with the interview process on the scheduled day.
44. This situation is particularly concerning given the context of a very large high school, which caters to thousands of learners and employs a substantial number of educators. In such an environment, the in-terests and well-being of the learners must be prioritized, and any conduct that undermines the effec-tive functioning of the school warrants serious scrutiny. The Chairperson’s unprofessional conduct has notably compromised the smooth operation of the institution, thereby impacting the overall learning en-vironment. Furthermore, the respondent’s decision not to call the Chairperson to testify regarding his role and conduct during the proceedings raises significant questions about the integrity and fairness of the process. This omission could be perceived as an attempt to conceal relevant information, further eroding confidence in the impartiality and transparency of the proceedings.
45. Mr. Felix confirmed that Mr. Prinsloo even currently managed South African School Administration and Management System (SA-SAMS). In South Africa, SA-SAMS is the national education manage-ment system developed and provided by the Department of Basic Education (DBE). It is used by over 85% of public schools to standardize data management and policy implementation.
    Key Functions:
    • Learner Management: Tracks learner attendance, enrollments, personal details, and profiles.
    • Curriculum & Assessment: Manages learner marks, tracks academic progress, and generates report cards.
    • Educator & Staff Management: Maintains staff profiles, manages timetables, and tracks educator attendance.
    • School Administration & Finance: Handles admissions, transfers, school budgeting, and fee management.
    • Reporting: Generates data-driven reports for the school management team and provincial education office.
46. Furthermore, there was no record of any staff or SGB meeting that was conducted to profile the posi-tion, selecting the interview panel which was necessary for proper vacancy management as claimed by the resource person. The position of Deputy Principal became vacant due to the incapacitation and prolonged absence of the previous Deputy Principal, who had been absent for approximately seven years.
47. The argument presented by the respondents that Mr. Kock performed approximately an average of 0.4 points better than Mr. Prinsloo during the interview could not be substantiated by any written minutes or justified documentation, as the score allocation appears to have been subjective and the only mate-rial evidence. Furthermore, the claim by the second respondent’s representative that Mr. Prinsloo was not better than the other candidates, aside from Mr. Kock, is unfounded, as the record of the scoring evidence indicates otherwise.
48. As previously observed, there were no minutes or formal records delineating the specific criteria that the interview panel was required to consider during the selection process. It became evident that, due to a lack of consensus among the panel members—whose disagreements were neither documented nor adequately explained—an arbitrary decision was made to focus solely on the scores of only four questions. The average time allocated to each candidate was approximately twenty-six (26) minutes, which suggests that the process was conducted in a rushed manner. This brevity appears to be a con-sequence of the Chairperson arriving late, without providing any explanation for the delay. Given the significance of the Deputy Principal position, such conduct is particularly concerning, as it raises seri-ous questions regarding the fairness, transparency, and integrity of the entire selection process.
49. It can be concluded that such procedural irregularities undermine the fairness and legitimacy of the promotion process because they can result in unfair discrimination, favouritism, or arbitrary decisions. When the process lacks transparency, consistency, and accountability, it questions whether the best-qualified and suitable candidate was truly selected, thereby compromising the substantive fairness of the promotion.
50. In the case of Minister of Defence and Military Veterans v Motlanthe (2012) ZACC 36, the Consti-tutional Court emphasized that procedural fairness is a core component of administrative justice. The Court held that an administrative decision made without following fair procedures is fundamentally flawed, even if the outcome appears to be just or beneficial. The judgment reinforced that decisions af-fecting individuals’ rights or legitimate expectations must adhere to principles of legality, fairness, and transparency. Specifically, the Court stated that “procedural fairness is a fundamental aspect of consti-tutional rights to administrative justice and must be observed in all administrative actions that affect in-dividuals’ rights or legitimate expectations.” It further underscored that failure to follow fair procedures can invalidate decisions, regardless of the substantive merits.”
51. Applying this principle to the context of educator promotions, it is clear that any irregularities—such as not following prescribed processes, failing to document decision-making criteria, or conducting biased or opaque interviews—can render the promotion process unfair and unlawful. Such procedural irregu-larities undermine the legitimacy of the appointment and can be challenged on constitutional grounds, emphasizing that procedural fairness is essential for ensuring substantive fairness in employment de-cisions.
52. In CUSA v Tao (2013) 34 ILJ 2274 (LAC), the Labour Appeal Court highlighted the critical importance of adhering to fair procedures in employment and promotion processes. The Court emphasized that “gross procedural irregularities, such as denying an employee a fair opportunity to be heard or making decisions based on incomplete or biased information, can fundamentally undermine the fairness of a promotion process.” The Court clarified that procedural fairness is not merely procedural formality but a substantive requirement that ensures legitimacy and fairness in employment decisions.
53. The Court further stated that “a promotion process that is marred by significant irregularities, which deprive the affected employee of a fair hearing or proper documentation, can be declared invalid.” It underscored that “even where the substantive criteria for promotion are met, procedural flaws can in-validate the decision if they undermine fairness.” The judgment reinforced that employers must follow transparent, consistent, and fair procedures to uphold the integrity of promotion processes.
54. This case illustrates that in the context of promotions, especially for positions of significant responsibil-ity such as deputy-principals or senior educators, gross procedural irregularities—such as making de-cisions without documented criteria—can be grounds to challenge the fairness of the appointment.
55. In NEHAWU v UCT and others [2003] ILJ 95 (CC) “The focus of section 23(1) is, broadly speaking, the relationship between the worker and the Employer and the continuation of that relationship on terms that are fair to both. In giving content to that right it is important to bear in mind the tension be-tween the interests of the workers and the interests of the Employers which is inherent in labour rela-tions. Care must therefore be taken to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices. It is in this context that the LRA must be construed”. [Par 40]
56. Substantive Fairness: Focuses on why the decision was made. It requires that promotions be based on objective, legitimate, and merit-based criteria aligned with organizational needs. A decision be-comes substantively unfair if it is based on bias, nepotism, or arbitrary grounds that infringe upon a candidate’s dignity or lack rational reason.
57. Procedural Fairness: Focuses on how the decision was made. The process must be transparent, predictable, and consistent. Candidates must be clearly informed of the criteria, granted equal oppor-tunities to compete, and provided with written reasons for the outcome so they can challenge the deci-sion if necessary.
58. In Mokhele v MEC for Education, Free State Province (2015) ZACC 46, the Constitutional Court examined the fairness of a promotion process within the public sector, emphasizing that promotion de-cisions must adhere to constitutional principles of fairness. The Court highlighted that substantive fair-ness requires promotions to be based on merit, qualifications, and organizational needs, and that deci-sions
    influenced by bias, nepotism, or arbitrary considerations are unfair and violate constitutional rights. In the specific case, the Court found that the promotion had been based on arbitrary factors, rendering it substantively unfair. The Court also underscored the importance of procedural fairness, stating that the process must be transparent and consistent. Employees must be clearly informed of the criteria for promotion, given a fair opportunity to participate, and be provided with reasons for the decision, ena-bling them to challenge or review it if necessary. The failure to follow such fair procedures undermines the legitimacy of the decision and violates constitutional principles. This case reinforces that employers must ensure that promotion decisions are merit-based, transparent, and communicated clearly, with fair opportunities for all candidates to compete, and reasons for decisions openly provided. Overall, Mokhele emphasizes that both substantive and procedural fairness are fundamental in ensuring just and lawful promotion processes within workplaces.
59. It was further undisputed that, in addition to possessing greater teaching experience and having previ-ously served as a Head of Department prior to Mr. Kock, Mr. Prinsloo bore responsibilities that includ-ed managing the school’s timetabling and overseeing the critical SASAMS program. These duties con-stitute substantial administrative functions, as explicitly outlined in the Personnel Administrative Measures (PAM) of 9 September 2022. Such responsibilities are indicative of a higher level of opera-tional competency and leadership, which are relevant considerations in assessing the qualifications and suitability of the candidate for the position in question.
60. The respondents failed to make any submissions or provide evidence to substantiate that, in the event the incumbent’s appointment is declared invalid, such a declaration would adversely affect the effective functioning of the school. In fact, evidence before the me indicates that the previous deputy-principal, who occupied the position in dispute, was incapacitated for approximately seven (7) years. Mr. Felix submitted that, aside from the duties performed by Mr. Prinsloo, other members of the School Man-agement Team (SMT) also assist with the responsibilities associated with the deputy-principal’s role.
61. Having regard to the totality of the circumstances, I find that the process leading to the appointment was fundamentally flawed and marred by material irregularities. Accordingly, I am compelled to declare the appointment of the incumbent, Mr. Jerome Kok, invalid, null, and void. Therefore, the va-cancy of deputy-principal should be re-advertised without delay to afford a fair and lawful oppor-tunity for suitable candidates to be considered for appointment.
62. The applicant, Mr. Len Prinsloo, is entitled to receive just and equitable compensation equivalent to one (1) month’s gross salary, amounting to R 44 558.75, subject to applicable statutory deductions. Such payment must be effected no later than 20 August 2026.
63. Furthermore, the Head of the Department of Education – Eastern Cape (HOD) is directed to en-sure that the said payment is made to the applicant, Mr. Len Prinsloo, by the stipulated date. Should the payment not be received by that date, the amount of R 44 558.75 shall accrue interest at a rate of 10.25% per annum from 21 August 2026 until the date of actual payment.
    AWARD
64. The1st respondent, the Department of Education-Eastern Cape, committed an unfair labour practice as contemplated by Section 186(2)(a) of the Labour Relations Act. 1998, as amended.
65. The entire process was marred by significant irregularities and the appointment of the incumbent,
    2nd respondent Mr. Jerome Kock is declared invalid, null and void.
66. The vacancy of Deputy-Principal should be re-advertised as soon as possible.
67. The 1st Respondent is directed to pay the applicant, Mr. Len Prinsloo, just and equitable compensa-tion equivalent to one (1) month of his gross salary, amounting to R 44 558.75, (Forty-Four Thou-sand Five Hundred and Fifty-Eight Rand, Seventy-Five Cents), subject to applicable statutory deduc-tions. Such payment must be effected no later than 20 August 2026.
68. The Head of the Department of Education – Eastern Cape (HOD) is directed to ensure that the said payment is made to the applicant, Mr. Len Prinsloo, by the stipulated date. Should the payment not be received by that date, the amount of R 44 558.75 shall accrue interest at a rate of 10.25% per annum from 21 August 2026 until the date of actual payment.
69. No order as to costs.

Commissioner: Hadley Saayman
Sector: Education