---
title: "15 May 2026 – ELRC968-25/26LP"
description: "AT THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN POLOKWANE ON THE 26 January AND 28 April 2026 Case Number: ELRC968-25/26LP In the matter between: - Baloyi Rhulani Applicant And Limpopo Department of Education First Respondent ## Maake Lucia…"
url: "https://elrc.org.za/docs/15-may-2026-elrc968-25-26lp/"
updated: "2026-05-25"
category: AWARDS
---

# 15 May 2026 – ELRC968-25/26LP

AT THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN POLOKWANE ON THE 26 January AND 28 April 2026

Case Number: ELRC968-25/26LP

In the matter between: -

Baloyi Rhulani Applicant

And

Limpopo Department of Education First Respondent

## Maake Lucia Second Respondent

## ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

1. The hearing was held on the 26 January and 28 April 2026, in Tzaneen at Mopani West, Prosperitus building, Limpopo Province.
2. The Applicant represented himself, while the Respondent was represented by Ms. Modika Portia, a labour relations official.
3. The Second Respondent, Ms. Maake Lucia was present for the duration of the proceedings but did not participate by either adducing evidence or cross-examining witnesses. She abides by the award.
4. Both parties submitted bundle of documents which was admitted into record as evidence. The Applicant’s bundle was marked as “A”, while the Respondent’s bundle was marked as “R”.
5. The proceedings were digitally recorded.

THE ISSUE IN DISPUTE

1. I must determine whether the Respondent committed an unfair labour practice by failing and/or refusing to promote the Applicant. If I find in favour of the Applicant, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

1. The Respondent advertised the position of Head of department, post 14 at Kgapane High school in the district of Mopani west, in the Limpopo Province through an open vacancy list.
2. The School Governing Body shortlisted and interviewed the Applicant, the second Respondent and three (3) other candidates.
3. The SGB subsequently recommended the second Respondent for appointment, which recommendation was approved by the head of department, being the appointing authority.
4. The Applicant, Mr. R Baloyi, referred an unfair labour dispute alleging that the First Respondent committed an unfair labour practice for failing to appoint him as an equity candidate in terms of circular 96 of 2023.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT
RHULANI BALOYI

1. Mr. Baloyi testified under oath in English. The succinct summary of his evidence was as follows:
   11.1 following the advertisement of the head of department position at Kgapane High school, he responded with an application, which was accepted culminating with the interviews.
   11.2 following the interviews, he was ranked as second best candidate with a score of 80.2 percentage behind the second Respondent with a 88.2 percentage.
2. That in terms of circular 96 of 2023, he ought to have been appointed as an equity candidate.

MABELANE SR

1. Ms. Mabelane testified on behalf of the Applicant. Briefly, she testified that she participated in the recruitment process in question by virtue of her position as a member of the School Governing Body (SGB).
2. That she did not form part of interviewing panel, however she formed part of the committee that recommended the appointment of the second Respondent to the SGB.
3. That the Principal informed the SGB about circular 96 of 2023 only after the interviews, and that they have never seen the circular as the SGB.
4. She testified that their role as the SGB was to constitute the interviewing panel which was guided by the principal and recommend suitable appointable candidates to the head of department for appointment.
5. That the SGB recommended Ms. Maake ML, the Second Respondent for appointment.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
MODIPA MP

1. The Respondent called only one witness, Ms. Modipa MP. She testified that she holds the position of District Director in the employ of the Respondent responsible for human resources, recruitment, appointments and labour relations.
2. She testified that a human resource person by the name of Phogole MK prepared a document that appears of page 91 of “A” which recommended the appointment of the Applicant. She further testified that the SGB recommended the second Respondent, Ms. Maake ML for appointment as per a letter appearing on page 96 of “A”.
3. Ms. Modipa further testified that having applied her mind on the recommendations of the SGB and the ranking of the candidates together with the recommendation of Ms. Phogole MK, she approved the appointment of Ms. Maake ML as the most suitable candidate.

ANALYSIS OF EVIDENCE AND ARGUMENT

1. The issues for determination are simple and straightforward. The parties agreed in a pre-arbitration minute that the only issue for determination was whether the Respondent committed an unfair labour practice by failing to appoint and/or promote the Applicant on the basis of equity in terms of circular 96 of 2023.
2. The relevant clause in the circular reads as follows: “the head of department or the delegated official shall always strive to appoint any qualifying candidate from under-represented groups regardless of scores obtained by candidates from over-represented groups”.
3. The Applicant submitted the employment equity profile which appears on page 223 of “A”, and it records the following at clause 3.3.1 “African, colored, Indian and white males are under- represented”, 3.1.3, “African and white females are over- represented” at departmental head level.
4. Accordingly, on the version of the Applicant, it follows that he should have been appointed solely on the basis that the employment equity profile of the province shows that black males are under-represented with departmental heads level. The Applicant argument is that the employment equity should have been the only consideration and failing which the Respondent committed an unfair labour practice against him.
5. The SGB reflected on the employment equity profile of the school when recommending the incumbent, Ms. Maake for appointment. In their letter of recommendation which appears on page 96 of “A”, at paragraph 3, they wrote thus “the SGB recommends her (MS. Maake ML) on the grounds that the equity of our school management team (SMT) is dominated by males with the ratio of seven (7) males to two (2) females”.
6. This version was not disputed by the Applicant. On the contrary, the Applicant conceded that had he being appointed, the school management team which comprises of the Principal and departmental heads (SMT) would have had only one female and eight males at management level. Ms. Maake’s appointment added the second female to the management team.
7. The District director accepted and approved the SGB recommendation to appoint Ms. Maake ML on the basis of the school equity profile. The District director applied her mind, and in my view correctly when she commented thus “Maake ML is appointed departmental head as per merit and SGB recommendation”.
8. It is worth repeating that the Ms. Maake ML was ranked higher than the Applicant with a score of 88.2 in contrast to the Applicant’s 80.2 percentage points. Further, Ms. Maake has higher qualifications and many years of teaching experience than the Applicant.
9. In my view, it would have been unfair to simply promote the least suitable candidate at the expense of the most suitable candidate in order to meet the equity profile of the province when the equity profile at school level would have been balanced by an addition of a female departmental head.
10. In any event, the clause that the Applicant relies on does not oblige the appointing authority to appoint from the under-represented groups at all costs.
11. Regard must be had to other factors. The relevant clause provides that “the head of department or the delegated official shall always strive to appoint any qualifying candidate from under-represented groups regardless of scores obtained by candidates from over-represented groups”.
12. Section 7(1) of the Employment of Educators Act, no 76 of 1998 (as amended) (EEA) provides that:
    “In the making of any appointment or the filling of any post on any educator establishment under this act due regard shall be had to equality, equity and the other democratic values and principles which are contemplated in section 195 (1) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), and which include the following factors, namely
    (a) the ability of the candidate; and
    (b) the need to redress the imbalance of the past in order to achieve broad representation”.
13. Commenting on Ms. Maake ML’s abilities, the SGB wrote thus “Maake ML has proven beyond doubt to be capable of taking the school to another level. The school is blessed to have someone like her who has won the National teaching award in physical sciences last year October 2024”.
14. In this case, it was common cause that the SGB interviewed five candidates for the position of departmental head at Kgapane High school. It was also common cause that the Applicant was ranked number two behind the second Respondent, Ms. Maake. It was also common cause that Ms. Maake was more experienced than the Applicant in terms of years of teaching experience and also holds higher qualifications than the Applicant.
15. The Applicant’s case was based entirely on the equity as provided for in circular 96 of 2023.
16. It is trite that in unfair labour disputes, the onus lies with the Applicant to prove the unfairness.
17. In this case, the Applicant alleged an unfair conduct by the Respondent solely on the basis of the provincial equity profile. Put differently, the Applicant argued that he ought to have been appointed for simply being a black male candidate on the basis that black males are underrepresented at department head in the province.
18. In my view, the circular does not do away with other factors that were correctly considered by the SGB, namely, the ability of the parties and equity profiles at the school level. It would have been amiss of the SGB to ignore the ratio of seven (7) male teachers to one (1) female teacher at the department head level at their own school in order to advance the provincial equity profile in line with circular 96 of 2023.
19. It is common cause that the appointment of Ms. Maake added one more female departmental head in contrast to the seven male departmental heads.
20. The question is whether the Respondent committed an unfair labour practice by failing to appoint the Applicant. In my view, no unfair labour practice has been committed against the Applicant.
21. Accordingly, I find that the Applicant failed to prove on a balance of probabilities that the Respondent committed an unfair labour practice

AWARD

1. The Applicant’s dispute referral is hereby dismissed.

Thapelo Mathekga
ELRC Panelist