IN THE EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER: ELRC 857-25/26 EC

IN THE ARBITRATION
Between
MFOWETHU NOGEMANA APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
VELISWA NGCINGANE 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 16 AND 17 MARCH 2026
DATE AWARD SUBMITTED 14 APRIL 2026
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. This matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education, Ngcobo on 16 and 17 March 2026. Mrs Siphokazi Gazi from SADTU union represented the applicant, Mr MG Zozi. An official from the Department of Education, represented the First Respondent and Mr Ezile Mazathana from NAPTOSA union represented the Second Respondent, Ms Veliswa Ngcingane.

ISSUES TO BE DECIDED

2. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.
   BACKGROUND OF THE DISPUTE
3. This is a promotion dispute involving post volume 2 of 2025 in the Eastern Cape being the head of department (HOD) post for Siyahlangula Primary School at Elliot.
4. Applicant was teaching at Siyahlangula Primary School since 2011 as post level one educator with 30 years teaching experience. The Second Respondent being Mrs Veliswa Ngcingane was post level 1 educator acting as the departmental head teaching in the same school with the applicant during her appointment as head of department at Siyahlangula Primary School.
5. After the post was advertised five candidates were shortlisted including the Applicant and Second Respondent applied for the post and all were invited to the interviews where the incumbent was placed number one and applicant placed number two.
6. The Second Respondent’s appointment was approved by the Department of Education and assumed duties as head of department at Siyahlangula Primary school.
7. The Applicant initiated his dispute by claiming that the incumbent was not qualifying for the post and he was not appointed despite meeting all the requirements of the post advertised in the bulletin, so lodged his dispute to ELRC for the appointment to be set aside and re-advertised. SURVEY OF EVIDENCE AND ARRGUMENT
   Employee’s case
   Witness: Mfowethu Nogemana
8. He testified under oath that he has been an educator of the Department of Education at Siyahlangula Primary School with 30 years teaching experience and knew the incumbent as his colleague as they are teaching in the same school. He is challenging head of department post at Siyahlangula Primary school where the incumbent was appointed by the First Respondent as the departmental head in their school.
9. He testified that he is a qualified educator with teacher’s course who taught Maths, Science, Xhosa and English for thirty years and the incumbent has never taught Maths, Technology and Science as she was teaching Social Science and Xhosa.
10. He stated that the post requirements were Maths, Science and Technology, which he has them as he did them at high school and at college level, so he viewed himself qualified for the post as he met the requirements of the post as he further taught Maths and Science at grade six, seven and nine, but the incumbent was teaching Xhosa and Social Science since 2011as per his understanding at school.
11. He submitted that the incumbent was allocated Maths in November 2025 to teach it in 2026, but never taught the subject as it was allocated to Ms Mshibe who was deployed at their school.
12. He further emphasised that he disputes that the incumbent has taught Maths and Science at their school as he was already at school when the incumbent arrived..
13. He finalised his evidence and seeks that he be considered for the post as he qualified for the post and incumbent was not qualifying for the post to which she was appointed to, as she did not have Maths, Science and Technology.
14. He confirmed during cross examination that the incumbent has management qualification which was advantageous to her, but not qualifying to be appointed in the post of departmental head as she did not have Maths, Science and Technology, which were post requirements.
15. He further admitted that he has General Science and not Natural Science, which he viewed as one subject with name changes.
16. He disputed that he was not supposed to have been shortlisted by the panel as he claimed to have Maths and Science, but with no Technology. He further confirmed that in his tertiary certificate there was no Maths to prove that he qualified for the post and be shortlisted by the panel, but insisted that in his transcript, Maths appears as subject and this confirms that he qualifies for the post in question.
17. He further confirmed that the incumbent taught Maths, Natural Science and Technology at Dinwayo School, Natural Science at Zweloxolo School as reflected in the application form paragraph 21.2 of the incumbent’s application form, which indicated that the incumbent was more experienced that the applicant as applicant never taught Technology at school. He further confirmed in his application form that he taught Maths and Life Orientation grade 6 and 7 and there was no Natural Science he taught in school.
18. He confirmed that the incumbent was recommended by the SGB and finally appointed to the post as she met other requirements of the post, but with no Maths. Natural Science and Technology as other considerations were looked at by the panel and district director.
19. He further confirmed that the post required an educator with all the subjects that were in the advert, and has not having all the subjects, but disputed that he was not supposed to have not been shortlisted as he viewed himself qualifying for the of HOD post at Siyahlangula Primary School.
20. He emphasised that the panel acted irregular as recommending a candidate with no Maths, Science and Technology, so viewed that the incumbent was not supposed to have been appointed as she did not have the required subjects as per the advert.
21. He submitted during re-examination that had he been given a chance to bring his transcript that will show maths at tertiary level he would appreciate this as that would confirm that indeed he is qualified for the post to be appointed than the incumbent. He finally stated that there were better candidates like himself to be appointed than the incumbent as was not qualifying to be appointed as HOD as per the requirement of the post, which was not requiring management and experience, but as added advantages for consideration.
    RESPONDENT’S CASE
    Witness Veliswa Ngcingane
22. She testified under oath that she worked for the respondent for over thirty years as an educator and knew the applicant as her colleague teaching in the same school.
23. She referred to the ELRC referral as referred by the applicant that she meets the requirements of the post, which she concurred with the applicant as she qualified to be appointed as the departmental head at her school.
24. She stated that the applicant confirmed that she was qualifying for the post as has considered
    various factors like knowing her as qualified educator, enough experience, acting head
    of department at their school, so feel honoured to be recognised by the applicant and felt no need for the sitting of this case.
25. She submitted that she has experience in teaching Maths, Natural Science and Technology since 1995 as she taught them at Dindwayo and Zweloxolo schools. She further stated that she has management qualification and acted as departmental head at her school since 2024 up to her appointment as departmental head, taught Technology, which the applicant has not, so viewed having upper hand over the applicant.
26. She referred to her tertiary certificates where she stated that she was more qualified than the applicant as she has management qualification and applicant does not have it. She viewed this as one of the considerations to be appointed to the post in question.
27. She further referred to her performance during interviews where she obtained high score and was the first choice (number one) and the applicant was the second choice (number two). The panel was satisfied by her performance more than the applicant.
28. She confirmed during cross examination that she did not have transcript, but has experience to the required subjects advertised in the bulletin for the post as she taught them at various schools.
29. She disputed that she did not have subjects advertised as she applied for the post based on her experience to the subjects and further disputed that she was not supposed to have been shortlisted as post also consider other requirements as she has management qualification made her to qualify for the post.
30. She confirmed during cross examination that there was no management requirement in the advert, but as educator knew that is required to be in the school management.
31. She further disputed that the panel incorrectly appointed her as in their scores was number one in the presence of unions that certified that interviews were fair, ratified by SGB and appointed by the Department of Education as departmental head at Siyahlangula Primary School.
32. She disputed that the filling of the referral to the ELRC was a mistake as the applicant concluded that she met the necessary requirements of the post in question, so steaks to the view of the applicant that she met the post requirements.
    Witness: Nomakhaya Tsotso
33. She testified under oath that she was the acting principal of Siyahlangula Primary School and was the resource person during the recruitment of the departmental head post in their school.
34. She further stated that she knew both the applicant and the second respondent as she is their
    supervisor at school.
35. She submitted that she was not scoring as she observed the process where all candidates were asked similar questions and using one tool of scoring, so viewed process fair as there was no external interference to the panellists.
36. She stated that the panel recommended the incumbent based on her performance in the interview as the incumbent was further acted as departmental head at their school.
37. She referred to the interview minutes where she stated that the panel recommended the incumbent, SGB ratified by further recommending the incumbent and finally appointed by the first respondent as departmental head at Siyahlangula Primary School.
38. She further submitted that the incumbent was allocated Maths in 2025, but was changed due to arrival of redeployment educators where Ms Mshibe was allocated Maths.
39. She confirmed during cross examination that the post requirements as per the advert were Maths, Natural Science and technology based on school needs, which they achieved by appointing the incumbent.
    ANALYSIS OF EVIDENCE AND ARGUMENT
40. 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 66 of 1995(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.
41. I have considered the departmental guidelines for interview procedures, post requirements as per the advert, as well relevant case law.
42. 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 promotion.
43. I have to decide whether the First Respondent acted fairly or not in not appointing the Applicant in the position of the head of department (HOD) at Siyahlangula Primary school.
44. I start by considering procedural fairness in the promotional employment process of the HOD at Siyahlangula Primary school.
45. As this is a HOD promotional post, in terms of the Employment of Educators Act PAM
    regulations the role of the departmental officials as resource persons is to assist the school
    governing body (SGB) towards the appointment of qualifying school management by giving control to manage appointment processes. The resource person will be responsible to ensure that capacity building sessions is conducted with the interview committee to enhance its understanding of the selection and interview processes, resource person was appointed and no challenge against the resource person by the applicant.
46. Considering post requirements, l find that the Second Respondent was not qualified for the post of HOD as the post was advertised in the bulletin required Maths, Natural Science and Technology, but the incumbent had none of the required subjects as per the advert of the post, which she confirmed to have Xhosa, English, Geography and History in her SPTD tertiary qualification and Education Management as further confirmed in her application form for the post in question. I further find that the incumbent taught Maths, Natural Science and Technology in various schools as the incumbent testified, but not having tertiary qualification to teach them in school. I have further considered incumbent as acting HOD, which l view that the panel complied with Eastern Cape Department of Education Collective Agreement no.1 of 2024 by shortlisting the incumbent as was acting HOD. l further find that the incumbent has not met the post requirements as per the advert as has none of the required subjects, which was testified by the acting principal that they advertised the post considering school needs for Maths, Natural Science and Technology and these subjects appeared in the bulletin.
47. Considering applicant, l find that he had Maths and General Science, which l view made him better than the incumbent that was appointed in the post as per the required subjects in the advert. In terms of the Outcomes Based Education introduced in 1996 with further revised curriculum statements of Natural Science, General Science was modified to be more focussed on physical natural aspects and called Natural Science. Therefore, based on this OBE approach the applicant has General Science as was modified to be Natural Science.
48. Therefore, I conclude that incumbent’s appointment must be set aside as she has no required qualifications as per the advert in the bulletin volume 2 of 2025 dated 16 May 2025, which l view as basic requirement for the qualified candidate to be appointed, so l view experience, management qualification and interview performance are added advantages for appointment consideration and not basic post requirements.
49. Considering relief sought by the Applicant that the Second Respondent’s appointment be set aside, l find that the appointment of the incumbent must be set aside as she was not qualifying to be appointed as HOD based on not meeting the required post qualifications as per the advert in the bulletin being Maths, Natural Science and Technology, so the post of HOD for Siyahlangula Primary School is set aside to be re-advertised.
50. .” 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 that the appointment of the Second Respondent by the first respondent was substantively unfair as her application did not comply with the minimum requirements of the required subjects as per the advert in the bulletin as the incumbent had no Maths, Natural Science and Technology, but was appointed in contravention of such basic requirements of advertised subjects in the bulletin. So I conclude that the Applicant proved the necessity for the remedy he sought, that the appointment of the incumbent be set aside at Siyahlangula Primary School.
51. Based on the evidence before me, I find that the Applicant proved on a balance of probabilities that the incumbent was not qualifying to be appointed as HOD at Siyahlangula Primary School as she had no required qualifications of Maths, Natural Science and Technology, which I conclude that was unfair to the applicant who had some subjects as required in the advert.
52. I, therefore set aside the appointment of the Second Respondent Veliswa Ngcingane and order that this post be re-advertised and issued in the next bulletin.

AWARD

53. I find that the First Respondent committed an unfair labour practice relating to promotion as is intended in section 186 (2) (a) of the LRA against the Applicant for appointing the unqualified Second Respondent as HOD.
54. The appointment of the Second Respondent being Veliswa Ngcingane is set aside with effect from 30 April 2026.
55. The First Respondent is ordered to re-advertise this post in the next bulletin to be issued in 2026.
56. No order is made to costs.
    

Signature:

Commissioner: Bongani Mtati
Sector: Basic Education