15 May 2026 – ELRC949-25/26MP

ARBITRATION AWARD Panellist: Asnath Sedibane Case No: ELRC949-25/26MP Date of Award: 14 May 2026

In the ARBITRATION between:

Sunshine Mkhabela
(Union / Applicant)
and

Education Department of Mpumalanga
(1st Respondent)

Nkosinathi Hapson Mdhluli
(2nd Respondent)

Union/Applicant’s representative:   Mr Surprise Matsane                           
Union/Applicant’s address:          
1st Respondent’s representative:    Mr McMillan Shabangu    
1st Respondent’s address:       

    2nd Respondent’s representative:    Ms Neo Letanka  
                 2nd Respondent’s address:   __________________________________________________

DETAILS OF HEARING AND REPRESENTATION

The arbitration hearing between Sunshine Mkhabela (the Applicant) and Education Department of Mpumalanga (the First Respondent) and Nkosinathi Hapson Mdluli (the Second Respondent) was held under the auspices of the Education Labour Relations Council (“ELRC”), on 13 February 2026 and 24 April 2026, at Ikhamanga Building, Government Boulevard, Mbombela. The matter was set down for arbitration in terms of section 186(2) (a) of the Labour Relations Act 66 of 1996 (“the LRA’’).
The Applicant was present throughout the arbitration and was represented by Mr Surprise Matsane, a Candidate Attorney from TG Mbatha Attorneys. The First Respondent was represented by Mr Mcmillan Shabangu, an official of the Education Department of Mpumalanga. The Second Respondent was present, and he was represented by Ms Neo Letanka, an official of the South African Democratic Teachers Union (SADTU).
The parties submitted a common bundle of documents. The parties concluded and signed minutes of the pre-arbitration hearing, which were part of the bundle of documents.
At the conclusion of the leading of oral evidence, it was agreed between the parties and the Panellist, that the parties would submit closing arguments in writing, by no later than the 4th of May 2025. I have received the closing arguments from the Applicant and the First Respondent, and I have taken them into consideration when making this award. The Second Respondent did not submit any closing arguments. ISSUES TO BE DECIDED
I was required to determine whether the First Respondent committed an unfair labour practice relating to promotion against the Applicant, by not shortlisting her for the position of Departmental Head at Mgwenyane Primary School.
The relief sought by the Applicant is that the appointment of the Second Respondent be set aside, the post be re-advertised, and she be compensated with up to six months’ salary for the unfair labour practice.
After the narrowing of issues, it was agreed that the following issues were common cause between the parties:
7.1 The Applicant was appointed by the First Respondent as an educator on 01 July 2020. The Applicant’s basic monthly salary is R32, 148-25.
7.2 The Applicant applied for the position of Departmental Head at Mgwenyane Primary School, Post No: 62032-2757.
7.3 The shortlisting for the post was done on 28 October 2025.
7.4 There is a policy that governs selection and appointments in the Department of Education of Mpumalanga.
The parties agreed that the following were the issues in dispute:
8.1 Whether the Applicant was scored fairly during the shortlisting process.
8.2 Whether there was a conflict of interest from a member of the shortlisting panel.

BACKGROUND TO THE DISPUTE

The Applicant, Ms Sunshine Mkhabela is an educator at Mgwenyane Primary School since July 2020. She applied for an advertised post of Departmental Head at the same school in 2025 and she was not shortlisted. The Second Respondent Mr Nkosinathi Hapson Mdhluli was shortlisted and appointed in the position. The Applicant has declared the dispute for unfair labour practice relating to promotion based on the First Respondent’s failure to shortlist her for the position. The Applicant seeks an order to set aside the appointment of the Second Respondent and a re-advertisement of the position. The Respondents dispute that there was unfair labour practice committed by the First Respondent in the process that resulted in the appointment of the Second Respondent.

SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE
The Applicant, Ms Sunshine Mkhabela testified under oath as follows:

She serves as Deputy Secretary of the School Governing Body (SGB). She was part of the SGB meeting on 19 August 2025 as per the minutes of the meeting. Ms Mbuyane,99i who was one of the panellists for the shortlisting of the departmental head position at Mgwenyane Primary School is related to her in that she was married to her late uncle, Mr Doctor Matsane who was also teaching at the same school as Ms Mbuyane.
Under cross-examination the Applicant testified that Ms Mbuyane used to encourage her to apply for the post of departmental head. She had sent a WhatsApp text on 11 April 2025, encouraging her to apply for the post and even offered to give her an idea of what the post entailed. On 11 August 2024 Ms Mbuyane told her that she spoke to the Principal about the post but asked her not to disclose this. The fact that Ms Mbuyane was part of the shortlisting panel meant that she could either act in her favour or work against her. She believes that she had been unfairly scored by the shortlisting panel. THE FIRST RESPONDENT`S CASE
The First Respondent’s first witness, Ms Priscilla Nomsumbuluko Motha, Principal at Mgwenyane Primary School, testified under oath briefly as follows:
The post of head of department for the foundation phase was advertised at the school. A panel which included the SGB was formed in line with the provisions of the South African Schools Act (SASA). When the shortlisting was first scheduled, it came to light that there was a grievance that had been lodged by one of the applicants. The short listing was rescheduled. She was the resource person in the second sitting of the shortlisting. Mr Sifundza was the chairperson of the panel.
As the resource person, she had gone to the circuit with the union representatives to fetch applications. The panel proceeded with the shortlisting after formulating the criteria. After the shortlisting, the curriculum implementor checked that the process had been followed. The unions also observed the process and declared that it was fair and just.
Five candidates were shortlisted and invited for interviews. After interviews, the secretary of the panel sent the file with recommendations to the circuit office where it was approved and sent to the district office. The first process was nullified, and the circuit office had advised that the panel considers REQV 15. The Applicant was not shortlisted as she has REQV 14. When the panel were scoring the candidates to be shortlisted, they only had candidate numbers and not the names of the candidates. SGB members are issued with certificates which they can attach as evidence when applying for positions. The document that the applicant had attached as proof of her being an SGB member was an internal document with different committees and names of committee members, educators are not allowed to use the document for any purpose.
The First Respondent’s second witness, Mr Jeremiah Frank Sifudza, the chairperson of the shortlisting panel of the disputed post testified under oath briefly as follows:
The first shortlisting process of the post in question was disputed. He was elected as the chairperson in the second sitting. The panel had candidate numbers and not names when they were shortlisting. There was no issue of any conflicted members declared by any panel member. The unions declared that the process was fair.
Under cross-examination, Mr Sifundza confirmed that members of committees in schools were issued with certificates for their participation in the committees.
The First Respondent’s third witness, Ms Busisiwe Grace Mbuyane, a member of the shortlisting panel of the disputed post testified under oath briefly as follows:
She is a departmental head at Mlilo Primary School. She did not declare any conflict of interest during the shortlisting process as she did not know who had applied. The procedure with regards to the shortlisting was that the panel scored applicants in accordance with the criteria that had been set.
She knows the Applicant who refers to her as Aunt. She had encouraged the Applicant to apply for the departmental head post, and the Applicant had said that she would come to her for assistance with preparations for the application, but she had not come. The Applicant had later told her that she was no longer interested in applying for the post, but she would concentrate on her business. She had no knowledge that the Applicant had applied for the post.
Closing arguments by the Applicant
In closing, the Applicant submitted that the presence of her relative, Ms Mbuyane BG on the shortlisting panel created a conflict of interest. The law only requires a reasonable apprehension of bias. The Applicant suffered prejudice as a result of not being shortlisted. The Applicant was a member of the SGB, but she was not awarded points for this by the shortlisting panel. If the Applicant was scored fairly in the shortlisting process, she would have received at least 330 points, which would be equivalent to the score of candidate number 17 who was shortlisted. The Applicant prays for a finding that the First respondent committed an unfair labour practice against her and that the process should be redone or the applicant be awarded three to six months’ compensation.
In closing, the First Respondent submitted that the Applicant was dissatisfied that she was not shortlisted for the post and dissatisfaction alone does not constitute proof of unfair labour practice. The applicant failed to substantiate her claim during her examination in chief. The Respondents on the other hand effectively rebutted the Applicant’s claim. The criteria applied by the panel was strictly based on documentary proof attached by the applicants. The panel did not know the identity of any candidates during the shortlisting process. The process was procedurally and substantively fair. The First Respondent prays for the dismissal of the Applicant’s claim of unfair labour practice. ANALYSIS OF EVIDENCE AND ARGUMENTS
I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
The Applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the
L R A, which provides as follows: 186 Meaning of dismissal and unfair labour practice (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;
The Applicant testified as the only witness in her case and stated that she applied for the post of departmental head at Mgwenyane Primary School that was advertised in 2025. She further stated that she is a member to the SGB at the school and referred to minutes of an SGB meeting on 19 August 2025 in which she participated. She also stated that Ms Mbuyane, one of the panel members of the shortlisting of the post of the departmental head at Mgwenyane Primary school is her late uncle’s widow. When probed under cross-examination about her reference to the relation between her and Ms Mbuyane, the Applicant contended that Ms Mbuyane’s participation in the shortlisting process meant that she could either work in her favour or work against her and she believed that she did the latter since she was not shortlisted for the post.
The Applicant did not lead any evidence to show how the shortlisting panel had flouted the standard procedures and how this has led to her not being shortlisted in the post. The Applicant’s dispute was based on the alleged flouting of the shortlisting process and the implied conflict of interest by Ms Mbuyani failing to disclose that she and the Applicant were related. She did not refer to the specific prescript that dealt with issues of conflict of interest in shortlisting processes and how these are to be handled.
The First Respondent led evidence through three witnesses. Ms Motha, the Principal of the school and the resource person in the shortlisting process that is being disputed testified that the process was fair and that the trade unions who observed this process declared that it had been conducted fairly. Ms Motha further testified on the criteria that was used in the process and stated that the panel shortlisted candidates based on the set criteria and scored the candidates using the numbers allocated to their applications, and not names as these were not disclosed to the panel during this process.
Mr Sifundza who served as the chairperson of the shortlisting process of the post in question testified that the panel engaged and formulated the shortlisting criteria before the applications were verified and candidates were scored. He corroborated Ms Motha’s evidence with regards to the process that was followed and that the panel did not have the names of the applicants but only used the numbers allocated to the applicants when doing the shortlisting.
Both Mr Sifundza and Ms Motha testified that members of school committees were issued with certificates in the particular committees that they served in and that these certificates were the type of evidence that would be referred to in the shortlisting process. They both disputed that the document with list of committees and names of committee members, submitted by the Applicant in her application served as evidence to confirm that she belonged to a particular committee in the school.
Ms Mbuyane testified and confirmed that she and the Applicant are related through the Applicant’s late uncle. She confirmed that she was a panel member of the shortlisting committee in the shortlisting of the post of the HOD at Mgwenyane Primary School in 2025. She disputed that there was any conflict of interest and that she had failed to disclose this when participating in the shortlisting panel. Ms Mbuyane denied having been aware that the Applicant had applied for the post. She corroborated Ms Motha’s and Mr Sifundza’s evidence with regards to the panel’s use of candidates’ numbers as opposed to their names when doing the shortlisting.
It is trite in unfair labour practice relating to promotion that the onus rests with the applicant employee to prove, on a balance of probabilities that the employer committed an unfair labour practice by not promoting him/her. The Applicant must show through evidence that he/she was the best candidate for the position and that the decision to prefer another candidate over him/her was unfair. The employer is on the other hand also required, when challenged in promotion disputes, to prove that it acted fairly and in good faith in the process that excluded the Applicant from promotion. This was confirmed by the Labour Court in Pamplin v Western Cape Education Department (C1034/2015) [2018] ZALCCT.
The Applicant contended that the First Respondent failed to follow its own internal process and that Ms Mbuyane failed to disclose their relationship and her conflict of interest in the shortlisting process. She further contended that this showed bias on the part of the First Respondent and thereby prejudiced her. It was submitted in the Applicant’s closing arguments that the law does not require proof of actual bias but that only a reasonable apprehension of bias was required to show that there was unfairness. The Applicant only raised for the first time in closing arguments that had she been scored fairly by the shortlisting panel, she would have obtained 330 points and that would have been equivalent to one of the shortlisted candidates’ score and she would therefore have been shortlisted. No evidence whatsoever was led on this contention and the other parties were therefore not given an opportunity to cross-examine and/or lead evidence to counter this allegation. I can therefore not deal with arguments on which no evidence was led.
The Respondents’ evidence was that the issue of Ms Mbuyane’s being part of the shortlisting panel and not disclosing her relationship with the Applicant cannot be sustained through evidence as the panel only referred to numbers allocated to applicants by the administration and were not privy to the names of the applicants when the shortlisting was done. The Applicant did not dispute this and failed to lead any evidence to prove that Ms Mbuyane was aware that she had applied for the post. She did not dispute Ms Mbuyane’s evidence that when they discussed the issue of her applying for the post, she had indicated that she was no longer interested in applying for it.
The Applicant also failed to show how the scoring of her application was done wrongly by the shortlisting panel and how this would have prejudiced her. She did not dispute that a set criterion that had been agreed to by the panel had considered REQV 15 and that she only had REQV 14. She failed to show how she would have been scored higher or at the same level as the Second Respondent or any of the shortlisted candidates.
The First Respondent led evidence, to prove on a balance of probabilities, that the procedure that was followed in the shortlisting of the post of head of department at Mgwenyane Primary school was conducted in a fair manner in line with applicable prescripts and criteria that was set by the shortlisting panel.
The Labour Court in Mahape v City of Tshwane Metropolitan Municipality and others (JR 1887/21) [2023] ZALCJHB 176 held that an Applicant was required to do more than show that he/she was a suitable candidate for shortlisting. They were required to establish that the decision not to shortlist him/her was arbitrary, irrational, or motivated by malice. The Applicant in this matter failed to establish any of these elements. It therefore stands to reason that her claim for unfair labour practice relating to promotion must fail. AWARD
The Applicant, Sunshine Mkhabela has failed to prove on a balance of probabilities, that the First Respondent, Education Department of Mpumalanga has committed unfair labour practice against her, by failing to shortlist her for post of head of department at Mgwenyane Primary school.
The Applicant’s application is dismissed, and the Applicant is not entitled to any relief.