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15 May 2026 – ELRC1090-25/26GP

ARBITRATION AWARD

Case Number: ELRC1090-25/26GP
Commissioner: Ntjatja Klaas Aphane
Date of Award: 15 May 2026

In the ARBITRATION PROCEDINGS between:
OUPA JOEL SHIRINDI
(The Applicant)
And
DEPARTMENT OF EDUCATION: GAUTENG PROVINCIAL GOVERNMENT
(The First Respondent)
And
ADELAIDE RAMAABELE SEFALA
(The second Respondent)

DETAILS OF THE HEARING AND REPRESENTATION:

  1. This is the arbitration award in the arbitration proceedings concerning an alleged unfair labour practice in relations to promotion dispute between Oupa Joel Shirindi, the Applicant, and Gauteng Provincial Government: Department of Education, the Respondent, (First Respondent) and Adelaide Ramaabele Sefala, the Respondents.
  2. The dispute was referred to the ELRC in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995 (the LRA).
  3. The arbitration was scheduled and held on 11 March and 21 April 2026. All parties and witnesses physically attended at district offices of the Department of Education at Wonderboom Junction, and it was held under the auspices of the ELRC in terms of section 191(5) (a) of the LRA.
  4. The Applicant appeared in person and he was represented by his trade union official, PSA, Mosa Moloisi, whilst the Respondent was present and represented by its employee, Labour Relations Manager, MT Ralioma, accompanied by Mahlogonolo Mashaba. The second Respondent was present and represented herself on 11 March 2026, and she was represented by her trade union official, SADTU, Malope WM, on 21 April 2026.
  5. The award is issued in terms of section 138(7) of the LRA.
  6. The arbitration proceedings were digitally recorded and handwritten notes were taken.
  7. The prayer sought by the Applicant was protected promotion to HOD, PL2 retrospectively from 01 November 2025.

THE ISSUES TO BE DECIDED:

  1. I must determine whether the Respondent’s failure to promote the Applicant to the position TN25ED1055, Department Head, PL2, Life Orientation and English, constituted an unfair labour practice, and whether the Applicant is entitled to be promoted to position TN25ED1055.
  2. If I find that the Respondent committed an unfair labour practice or that the Applicant is entitled to promotion, I must determine the appropriate relief.

THE BACKGROUND TO THE DISPUTE:

  1. Unless otherwise indicated, the following factual matrix is common cause. The Respondents are the Department of Education and the successful incumbent, Adelaide Ramaabele Sefala. The Applicant commenced employment with the Respondent on 1 January 2007, as an Educator.
  2. During April 2025, the Respondent advertised the position, Department Head, PL2, Life Orientation and English, TN25ED1055 for Thornridge Secondary School.
  3. The Applicant, Joel Oupa Shirindi applied for the position number, TN25ED1055. The Applicant was shortlisted, and interviewed for the position number, TN25ED1055, but was unsuccessful.
  4. The Applicant was scored number 5, and was not recommended for appointment. The second Respondent, the successful incumbent, was recommended for appointment as the candidate number one (1).
  5. The parties signed pre-arbitration minutes and were submitted as part of the record. The Applicant alleged that the Respondent committed an unfair labour practice. The Respondent denied that it committed an unfair labour practice, and it sought the dismissal of the Applicant’s dispute.
  6. The Applicant referred the alleged unfair labour practices in relations to non-promotion dispute to the ELRC in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA). The unfair labour practices in relation to non-promotion was scheduled for conciliation and the conciliation outcome certificate was issued stating that the dispute remained unresolved. The unfair labour practice relating to non-promotion was scheduled for arbitration on 11 March and 21 April 2026.
  7. The Respondent’s representative submitted a bundle of documents, bundle, “R”, consisting of pages 1 to 85, whilst the Applicant submitted an audio recording.
  8. The Applicant testified in support of his case, (Joel Oupa Shirindi), whilst the Respondent’s representative called three witnesses (Meshack Kepe Mathibela, Tebogo Sharon Modibane, Kgabo Rejoyce Manamela).
  9. The Applicant was represented by his trade union representative, PSA, so I adopted an adversarial approach to the arbitration in order to determine the merits of the dispute fairly.
  10. The parties pleaded to submit written heads of arguments and duly complied, on 28 April 2026.
  11. The prayer sought by the Applicant was protected promotion to Department Head, PL2 Life Orientation and English, effectively from 01 November 2025.

THE PRELIMINARY ISSUES:

  1. There were no preliminary issues.

SURVEY OF THE EVIDENCE:

  1. I wish to state from the onset, that not all evidence presented will be set out hereunder. Only a summary of the relevant evidence is contained herein.

THE APPLICANT’S CASE:

  1. The Applicant was the only witness to testify in support of his case and he testified under that, he is an employee of the Respondent and he was employed as an Educator from 01 January 2007.He is a qualified Educator with BED (Honours) degrees and more experienced with eighteen (18) years as an Educator. He was based at Kgomotso Comprehensive High School. He was teaching the subject, LO, and during the year 2020/2021, he was Tshwane North Cluster number one (1) LO performance.
  2. He responded to an advert on R43, and applied for the promotion to be Departmental Head, PLS, Life Orientation and English, post number TN25ED1054, and the post was based at Thornridge Secondary School. He was shortlisted and competed for the post through interview, though he was not successful.
  3. He requested a former colleague, who was now a Subject Advisor Social Science, Roseline Mathe, for updates on the progress of the recruitment processes for the position of TN25ED1055, PL2, Life Orientation and English, at Thornridge Secondary School, and, his former colleague, Roseline Mathe, sends him voice note, which raised some concerns of possible irregularities in the recruitment process. The impression was created that the Principal and the SGB favoured or were biased towards the successful incumbent, AR Sefala, at the expense of other deserving candidates. That was source of the dispute. The audio recording was listened to, twice.
  4. In terms of the audio recordings, Roseline Mathe, was saying, the motivation for the appointment of the successful incumbent was amongst others, that she acted as Department Head for two years without compensation, the Principal and the SGB gelt she proved herself, and that she performed well during the interview processes.
  5. She even told him that she was preparing to conduct orientation programme for the successful incumbent. Also worrisome was that only one trade union was present, SADTU, and that was not fair given what he calls the reputation of SADTU. He was scared, though was unsettled, that only SADTU, was observing the process but failed to raise concern for fear of victimisation.
  6. During cross examination, the Applicant conceded that the Subject Advisor for Life Orientation was Celeste and not Roseline Mathe. The Applicant conceded that he was not one of the three recommended candidates. The Applicant also conceded that his score was 65% as compared to the successful incumbent who score 94% during the interview process as per R42. The raw minutes of the interview panel stipulated that the interview committee agreed that the outcome would be determined solely on score and the successful incumbent score 94% (R34).

THE RESPONDENT ’S CASE:

  1. The Respondent first witness was Meshack Kepe Mathibela, who testify under oath that, he was an employee of the Respondent, employed as a School Principal at Thornridge Secondary School. He confirms that the source of the dispute was the filling of the advertised post on R43.
  2. The interview panel was trained at District Officer to ensure total compliance with the recruitment processes, from shortlisting panel meeting, interview committee, date of the interviews, management plan, ratification of the interview process by the SGB, and all necessary logistics to ensure fair recruitment processes.
  3. For the purposes of the current dispute, eight (8) applicants were invited for interview but only seven (7) candidates were subjected to the interview processes. One candidate tendered an apology. The Applicant and the successful incumbent were interviewed. The top three candidates were recommended for appointment to the District Office and the Applicant was not amongst the recommended. He was number five (5) on the score sheet. (R42).
  4. The scores were fair based on the performance of the candidates. It cannot be correct that the successful incumbent was appointed on the basis that she was based at the school. There was another candidate, Bezuidenhout, who was based at school, and was not amongst the recommended candidates. Granted, the successful incumbent was assisting at school on voluntary basis from 2021, but was not favored at the expense of other candidates.
  5. Roseline Mathe was transferred to school despite the fact that she was not from the school, and she stays at the school for six months, before appointed as Subject Advisor. SADTU, the trade union observed the shortlisting and interview processes.
  6. The second witness for the Respondent was Tebogo Charon Modibane, who testify under oath that, she was an employee of the Respondent, and she was employed as an Administrative Assistant. She was the scribe for the entire recruitment process.
  7. Only seven candidates were interviewed and it was agreed by the panel that only scores would be used as determining factor to recommend the candidates to the District Director for appointment. SADTU representative observed all the recruitment processes. Three candidates were recommended and the Applicant was not amongst those recommended.
  8. The raw minutes of the recruitment processes did not include possible questions and possible answers but only score sheet contains possible questions and answers.
  9. The third witness for the Respondent was Kgabo Rejoyce Manamela, who testify under oath, that she was an employee of the Respondent and was employed as a Deputy Director: Human Resources Management. Her core responsibility was recruitment, benefits and PMDS.
  10. In all recruitment process the Respondent complied with ELRC Resolution 1 of 2021. They oversee the recruitment process, train the SGB on recruitment processes, advertisement of posts. All processes documents, proof of invites, the SGB ratification, scoresheets must be submitted to the District Office.
  11. The three recommended candidates were sent to the District Office and they were appointable. The criteria for the appointment of the successful candidate was her scores during the interview process. The process was fair.
  12. The second Respondent did not tender evidence.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

  1. In considering the merits of this dispute, I had regard to the provisions of the LRA, ELRC Dispute Resolution processes in particular ELRC Collective Agreement 3 of 2016, and relevant case law.
  2. According to section 186(2)(a), unfair conduct by the employer relating to the promotion of an employee constitutes an unfair labour practice.
  3. It is trite that there is no right or entitlement to promotion in the ordinary course, unless there is a contractual or statutory right to promotion. An employee only has a right to be given an opportunity to compete for a post. If an employee is not denied an opportunity to compete for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reasons; or that the employer acted on the basis of an irrelevant or invidious comparison; or that the employer’s decision was arbitrary, unfair, capricious, motivated by bad faith or discriminatory.
  4. It is further trite that the employee bears the onus to prove an unfair labour practice in terms of section 186(2) of the LRA.
  5. Everyone has the right to a fair labour practice. This cardinal principle is enshrined in section 23 of the Constitution of the Republic of South Africa Act 108 of 1996.This right is well entrenched in section 185 of the LRA which provides the right not to be unfairly dismissed or be subjected to unfair labour practice.
  6. The Applicant referred an unfair labour practice dispute as envisaged in Section 186(2) (a) of the LRA. I am therefore required to determine whether the Respondent’s conduct in not promoting the Applicant, amounted to unfair labour practice. The Applicant bears the onus to prove the unfair conduct complained of on a balance of probabilities.
  7. Section 138(7) of the LRA provides that the Commissioner must issue an award with brief reasons. It is therefore not my intention to provide a detailed record of all the evidence that was placed before me. Even though all the evidence was considered, I have only referred to the salient points that I found to be the most pertinent to deciding this matter. However, it should not be construed that I overlooked some of the evidence as I have considered all the evidence as well as the closing arguments submitted by both parties on 28 April 2026.
  8. It is common cause that the applicant applied for a position of the Department Head, PL2, Life Orientation and English and together with other candidates, was shortlisted, was interviewed but not appointed. The Applicant challenged the procedure as well as the reason for his non-appointment. The Applicant pointed out two issues that led him to believe that his non-appointment was unfair, that is, the audio recording sent to him by Roseline Mathe and the manner in which only one union was present to observe the processes, instead of all trade union in the education sector. Primarily, the main concern was the audio shared by Roseline Mathe, that created the dispute.
  9. Granted, three (3) candidates were appointable and recommended as such, but the Applicant was outside the recommended candidates list. The successful incumbent was the highest scorer and it was agreed by the panel that only scores were determining factor.
  10. The audio recording was listened twice, the crux of the conversation was that the successful incumbent acted in a higher role without compensation, and she was going extra mild for the school, and her performance during the interview was great, hence the SGB and the Principal thought of giving her chance. It was clear that Roseline Mathe was not authorized to spread those unsubstantiated views that created unnecessary tension in the system.
  11. In the case of Sun International Management (Pty) Ltd v CCMA & Others (JR939/14) LC, the Court held that it is important to note that in these types of cases, it is also incumbent on an Applicant to show a causal connection between the unfairness complained of and the prejudice suffered. See National Commissioner of the SA Police Service V Safety & Security Sectoral Bargaining Council & others. Consequently, it is not sufficient just to show that there was a breach of protocol or procedures in the recruitment process. It is necessary also for the Applicant to show that the breach of the procedure unfairly prejudiced him. Accordingly, the question is whether but for the Respondent’s conduct, the Applicant would have been appointed.
  12. The Applicant was not amongst the top three recommended and his dissatisfaction was fueled by Roseline Mathe, sending audio communique’ to the Applicant, that was only ignited by her unnecessary excitement. The Applicant, therefore, failed to prove that the process and the reasons advanced for the non-appointment was unfair.
  13. In Cullen v Distell (Pty) Ltd (2001) 8 BALR 834 (CCMA) the Court held that: – “In drafting item 2(1) (b) of Schedule 7, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. A Commissioner’s function is not to ensure that Respondent choose the best of most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates. The commissioner’s decision is whether the employer came to that decision in a fair manner. The employer’s decision must be procedurally and substantively fair. However, employees may have a valid complaint if they can show that they have been overlooked for promotion where they possess objective attributes, such as experience or qualifications, which the person who has been promoted does not possess, and their employers cannot explain why they were overlooked”.
  14. When deciding what constitutes unfair conduct in the context of promotions, the issue of management prerogative remains of critical importance. In Provincial Administration Western Cape (Department of Health and Social Services) v Bikwani and Others, it was held as follows: ‘There is considerable judicial authority supporting the principle that Courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process’.
  15. In consideration of the evidence, arguments, and case law, I find that the Applicant failed to discharge his onus to prove on a balance of probabilities that the Respondent has subjected him to an unfair labour practice related to promotion.

Award

In the premises I make the following award

  1. The Applicant, Joel Oupa Shirindi, non-promotion does not constitute unfair labour practice by the Department of Education.
  2. The matter is dismissed.
  3. There is no order as to costs.

Signature: