IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: ELRC 692-25/26 EC

IN THE ARBITRATION
Between
NOMVUYO MJALI APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
EULITE QOKOYI 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 20 MARCH 2026
DATE AWARD SUBMITTED 14 APRIL 2026
NAME OF PANELIST BONGANI MTATI

ELRC 692-25/26EC PAGE 1
DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at Trinset Education Centre offices in Mthatha on 20 March 2026 at 09h00. Mrs Sapokazi Gazi from SADTU represented the Applicant Ms Nomvuyo Mjali, Mr Siyabonga Gashi, an official from the department of education represented the First Respondent, (Department of Education Eastern Cape). Mr Lindile Matyumza from SADTU represented the Second Respondent, Mr Eulite Qokoyi.

ISSUES TO BE DECIDED

2. I am required to determine whether an unfair labour practice relating to appointment of the acting principal at Mthatha Community Primary School was committed or not. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE

3. This is an acting principal position at Mthatha Community School after the retirement of the principal at the school.
4. Both parties were teaching at Mthatha Community School as deputy principals.
5. After the retirement of the principal, the School Governing Body had to appoint an acting principal until a post of principal is permanently filled in, where the second respondent was appointed as acting principal.
6. The Applicant initiated her dispute where she stated that she was overlooked by the SBG as she had been senior deputy principal with more experience than the incumbent and met the requirements of the acting principal.
   SURVEY OF EVIDENCE AND ARRGUMENT
   Employee’s case
   Witness: Nomvuyo Mjali
7. She testified under oath that she was the deputy principal at Mthatha Community School and knew the incumbent as another deputy principal at Mthatha Community School.
8. She submitted that the incumbent was an educator in her arrival in 2012 at the school and worked together as deputy principals since 2017.
9. She stated that she started teaching in1991 and was appointed as deputy principal in 2009, qualified with PTD, FDE Management, honours in education law and policy, certificate on remedial education and computer certificate.
10. She stated that she referred her dispute due to not being appointed as acting principal as she viewed herself more experienced, so viewed herself as one was supposed to have been appointed as acting principal than the incumbent. She stated that it was the circuit manager who used to delegate her in the absence of the principal and SGB invited her into a meeting where she was asked whether available for the acting post of not and confirmed to be available for the post.
11. She submitted that after the meeting of the SGB, she was called and informed that she was not successful to be appointed as acting principal and another deputy principal was appointed by the SGB as acting principal of the school.
12. She submitted that she was further invited by the circuit manager and human resource to inform her that the decision to appoint acting principal is done by the SGB and not by themselves, so there is nothing they can do with her dispute.
13. She referred to the minutes of the SGB meeting in appointing acting principal where she criticised voting criterion used by the SGB to select acting principal, as SGB overlooked experience and showing division to the SGB as not acceptable to her, so viewed her rights to experience, qualifications and position violated by not appointing her.
14. She submitted during cross examination that she was aware that the incumbent was also consulted by the SGB for his availability for the acting principal, which he availed himself.
15. She emphasised during cross examination that the criterion of vote showed that SGB was divided on who should act as the principal and not considering experience and qualifications.
16. She admitted that she accepted the SGB results as democratic outcome to take their decision.
17. She further confirmed that there was no senior deputy principal as both are in post level three, but was senior in that she was appointed earlier than the incumbent as deputy principal.
18. She further stated during cross examination that she viewed SGB to have considered seniority and experience, but was not to be consulted on the criterion SGB was to use to select acting principal.
    RESPONDENT’S CASE
    Witness: Pakama Bam
19. She testified under oath that she was the chairperson of the SGB of Mthatha Community School and knew the applicant as the deputy principal of the school and incumbent as newly appointed principal of the school who was deputy principal during appointment of the acting principal.
20. She submitted that as the former principal retired they were consulted by the circuit manager to recommend acting principal at their school.
21. She stated that they had two deputy principals to choose from as both deputy principals were qualifying with experience and qualification, so they had to choose from them the acting principal as they were applicant and incumbent in these proceedings.
22. She stated that they decided to vote as SGB to recommend acting principal to the department of education, which they finally appointed the incumbent who had highest vote than the applicant and recommended him to the department as the acting principal at Mthatha Community School.
23. She emphasised that they reported to the applicant about their criterion and recommendation to the department who seemed accepted the results.
24. She disputed during cross examination that the SGB was not properly guided by the department on what to consider in recommending an acting principal as circuit manager approached them on what to consider in the appointment of the acting principal at their school.

SECOND RESPONDENT’S CASE
Witness: Eulite Qokoyi

25. He testified under oath that he was working at Mthatha Community School with his qualifications and specialisation as he was qualified with Senior Teachers Diploma, Bachelor of Commerce COM, Bachelor of Education ( BED) honours on policy and development, Masters of Education MED on special needs (not yet completed), certificate on inclusive education and identification of barriers on learners certificate.
26. He submitted that he started teaching in 1993 and became deputy principal in 2017, so was
    appointed as acting principal by the department of education as was recommended by the SGB
    of the school as he qualified for the post and viewed no irregularity occurred during appointment of acting principal.
27. He emphasised that he was consulted by the SGB about his availability to act as principal, which he confirmed his availability and ultimately was recommended by the SGB as acting principal at their school and was finally appointed by the department of education as acting principal of their school
28. He disputed during cross examination that he was not qualifying to teach at their school as he had STD and applicant qualified as she had PTD.

ANALYSIS OF EVIDENCE AND ARGUMENT

29. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
30. I have considered the departmental guidelines on appointing acting principal at schools.
31. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”. In this case unfair labour practice involves benefits
32. I have to decide whether the Respondent acted fairly or not in not appointing the Applicant in the position of the acting principal at Mthatha Community School.
33. In this case I find that the SGB members convened a meeting to recommend an acting principal to the first respondent after being consulted by the circuit manager, which they recommended the incumbent as acting principal at Mthatha Community School who was finally appointed as the acting principal by the first respondent. I further find that SGB meeting was convened after being consulted and briefed by the circuit manager about the process as testified by the SGB chairperson and corroborated by the second respondent, so l view procedurally dealt with by SGB up to the final appointment of the acting principal.
34. Considering qualifications and experience of the applicant and incumbent, l find that both parties met the requirements of the acting principal as both have more than seven years’ experience, were deputy principals, have three years qualifications as testified by applicant and incumbent, so the SGB had used a suitable criterion for them to appoint the acting principal, which the majority of the SGB agreed to the incumbent as acting principal, so l view their decision to recommend fairly dealt with and were not to ask criterion from the candidates as testified by the applicant to have accepted the outcome and corroborated by the incumbent to have accepted the outcome of the SGB meeting on recommendation of acting principal.
35. I reject evidence of senior deputy principal and more experienced than the other as both candidates met minimum requirements for the acting principal as they were both deputy principals with more than seven years’ experience as educators. There is no senior deputy principal at schools as testified by the applicant during cross examination.
36. Holistically, I conclude that the Second Respondent’s appointment was fair as he qualified to be appointed in the post of acting principal based on his qualifications, experience and preferred candidate by the SGB, which agreed to recommend him through their majority in the SGB.
37. Therefore, l find that there are no biased and insubstantial reasons based upon any wrong principle in employment process of the Second Respondent and further find that the Applicant has not proved that she was the best candidate to be selected as the acting principal at Mthatha Community School.
38. .” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l view appointment of the incumbent was fair as his application complied with all the requirements as testified by the chairperson of the SGB and the incumbent. So I conclude that the Applicant failed to convince and prove necessity that the remedy she sought to be compensated for the unfairness of not appointing her as acting principal as she requested is not successful.
39. The Applicant bears the onus to prove that the Respondent committed unfair labour practice relating to benefits and furthermore that there was some form of unfair conduct on the part of the First Respondent during the acting appointment process and that such unfair conduct constituted an unfair labour practice and she is entitled to the relief sought, but applicant has failed to prove such unfairness.
40. Based on the evidence before me, I find that the Applicant failed to discharge the onus in proving whether an ULP was committed. .
41. I find that the First Respondent committed no unfair labour practice to the Applicant based on the reasons highlighted above. In the result l conclude that the appointment of the second Respondent into the position of Acting Principal at Mthatha Community School is sustained and stands to be confirmed that the 2nd Respondent was the acting principal of Mthatha Community School as approved by the 1st Respondent and as incumbent signed assumption of duty to start his duties as acting principal of Mthatha Community School.
    AWARD
42. I find that the First Respondent committed no unfair labour practice relating to benefits as intended in section 186 (2) (a) of the LRA against the Applicant.
43. I confirm, sustain and stand that the position of acting principal at Mthatha Community School remains with the Second Respondent as appointed by the First Respondent.
44. No order is made on costs.

Signature:

Commissioner: Bongani Mtati
Sector: Basic Education