15 October 2025 -ELRC925-24/25GP

Panelist/s: Kuvonakala Chavalala
Case No.: ELRC925-24/25GP
Date of Award: 14 October 2025

In the ARBITRATION between:

Nthabiseng Sephesu
(First Applicant)

Lebogang Mohadi
(Second Applicant)
and

Department of Higher Education and Training (Gauteng)
(First Respondent)

Westcol TVET College
(Second Respondent)

DETAILS OF HEARING AND REPRESENTATION
[1] This is the arbitration award between Nthabiseng Sephesu (hereinafter referred to as the first applicant) and Lebogang Mohadi (hereinafter referred to as the second applicant) and Department of Higher Education and Training (hereinafter referred to as the first respondent or DHET) and Westcol TVET College (hereinafter referred to as the second respondent). The hearing concerned an alleged unfair labour practice dispute. It sat down on several occasions and was finalised on 29 September 2025 and parties were directed to submit written closing arguments on 07 October 2025 and both did so.
[2] The applicants were initially represented by Mr Nhlapho from NEHAWU, later, the first applicant was represented by Mr. Pheko from PSA and the second applicant represented himself. The respondents were represented by Mr. Zitha.
[3] The applicants submitted bundles of documents which were marked Bundle A1 and A2. The respondents submitted bundles which were marked Bundle R1 and R2.

[4] The hearing was held in English and it was digitally and manually recorded.

PRELIMINARY ISSUES
[5] At the commencement of the proceedings, the first applicant indicated that the relief she intended to seek was a transfer to the position currently held by Mr. Mohadi (the second applicant), and that Mr. Mohadi be correspondingly transferred to the position she presently occupies, a remedy she referred to as a ‘cross-transfer’. At that stage, Mr Mohadi was not part of the proceedings. I ordered that Mr Mohadi be joined to the proceeding as it became clear that he had substantial interest in the matter.
[6] I also directed that evidence be led on why this transfer matter amounts to a benefit, as jurisdiction of the ELRC hinges on such submissions.

ISSUES TO BE DECIDED
[7] I am required to decide if the respondents committed an unfair labour practice against the applicant in relation to benefits, if yes, the appropriate remedy.

BACKGROUND TO THE ISSUES TO BE DECIDED
[8] The applicant is employed by the respondents and stationed at Carletonville Campus. She is a Post Level 2 Lecturer.
[9] At the commencement of the arbitration hearing, we narrowed the issues. The following issues have been agreed as common cause:
a) The first applicant was employed by the DHET on 13 August 2008. She joined Westcol in August 2018. Her salary notch is at R435 240.00 per annum. She is currently stationed at Carletonville Campus.
b) She applied for a cross transfer on 18 July 2024 at the Campus management. The application was recommended by Campus management. The application still had to be approved.
c) The application was escalated to Central Office for the Principal to consider whether to approve it or not.
d) The Principal’s response was communicated to the first applicant on 07 August 2024.
e) Following the Principal’s response, the first applicant lodged a grievance on 12 August 2024. The first applicant received the outcome of the grievance on 22 August 2024.
f) On 28 August 2024, she escalated the matter to the DHET regional office. The regional office issued its outcome on 19 November 2024.
g) The powers to transfer a PL2 lecturer vests on the Principal in terms of the Delegations of Authority.
h) Continuing Education and Training Act 16 of 2006 (CET Act) is applicable and governs how colleges run their operations.
i) The first applicant is applying for a cross transfer but not within the Westcol TVET College but to South West Gauteng TVET College. She identified the second applicant who is currently in South west Gauteng TVET College to cross transfer with.

[10] The following were issues in dispute:-
a) Commission of an unfair labour practice.
b) The transfer or cross-transfer does not raise any issues relating to benefits.
c) The respondents exercised their discretion reasonably.

[11] On 12 November 2024, the applicant referred the dispute to the CCMA. On 05 December 2024, a ruling was issued to the CCMA transferring the matter to the ELRC. A certificate on non-resolution was issued by the ELRC on 16 December 2024. The matter sat on 17 February 2025 and a point in limine was raised relating to condonation. A condonation ruling was issued on 08 April 2025.

SUMMARY OF EVIDENCE AND ARGUMENT
The testimony led by all the witnesses is fully captured on the record of proceedings and what appears in this award is only but a summary of the evidence relevant to the issues in dispute and for determination

THE APPLICANT’S CASE
First witness: Nthabiseng Sephesu, the first applicant, testified under oath as follows:
[12] In 2022 she wrote to the campus management requesting a transfer as per page 1 of Bundle A. The then Campus manager supported the request on the condition that a replacement be appointed and the first applicant be released only with a replacement. She left the matter of transfer because she did not have any suitable replacement. In 2024, she met with the second applicant who she considered a match for cross transfer purposes. She applied for a cross transfer again which was recommended by Campus manager but was disapproved by the principal for no just cause.
[13] She provided detailed evidence, with reference to the Bundle, regarding her medical condition as well as that of her child. She described her domestic circumstances and the considerable difficulties associated with working in Carletonville while residing in Roodepoort. She indicated that Carletonville, being a mining environment, poses a risk to her health. On one occasion, she collapsed in class as a result of an asthma attack. She is presently diagnosed with depression, which she attributes to these cumulative circumstances. Furthermore, she travels approximately 200 kilometres to and from work.
[14] The failure to transfer affects her benefits because she runs out of sick days and may have to take unpaid leave. In disapproving the application, the Principal failed to consider the best interest of her minor children.
Cross examination
[15] The Applicant confirmed her awareness of the DHET Transfer and Relocation Policy, as reflected on page 32 of R1. She acknowledged that the Policy does not provide for the concept of a cross transfer. She further conceded that, in terms of clause 4.1.1 of the Policy, approval of a transfer is subject to considerations of fairness, specifically: (a) that a transfer may be considered where a vacancy exists, and (b) that while personal circumstances are generally taken into account, the College requirements take precedence. She maintained, however, that the Principal acted in breach of these provisions.
[16] She conceded that she had applied for the position at the Carletonville Campus and was not placed there through a transfer initiated by the employer. Accordingly, any travelling-related hardships she currently experiences are not the result of decisions made by the employer.
[17] She further acknowledged that she has never applied for temporary incapacity leave, as she has not exhausted her normal leave entitlement. She confirmed that when she falls ill and applies for sick leave, she continues to receive remuneration for those days.
Second Witness: Lebohang Sylvester Mohadi, second applicant, testified under oath as follows:
[18] He is a senior lecturer (PL2) at South West TVET College. His home is in Potchefstroom and he has expressed an interest to the South West TVET College that he would like to transfer to a College closer to his home. He met the First Applicant in June 2024, and they both recognised that they are suitably matched for a cross transfer, based on their respective qualifications and post levels.
[19] He spoke to his supervisor(HOD) and Campus Manager who recommended the transfer. Before recommending the transfer, his supervisor met with Ms. Sephesu for evaluation purposes and he was satisfied with her qualifications and abilities. He spoke to the Principal of South West TVET College who indicated that he was satisfied with the campus manager’s assessment. Ms Sephesu also spoke to her Campus Manager who recommended the transfer. The problem arose when Ms Sephesu’s Principal refused to approve the cross transfer.
[20] He believed the decision to not approve was unfair given the fact that he was not given a chance to be engaged or evaluated like Ms Sephesu was by his supervisor.
Cross examination
[21] He is not aware of what the Westcol TVET College Principal meant when he referred to “current needs and priorities’ of the college in his letter disapproving Ms Sephesu’s application for cross transfer. He cannot comment on whether the Transfer and Relocation Policy was breached. All he knows is that the decision was unfair and unjust which is against the purport of the LRA.
[22] He conceded that in terms of the CET Act, Westcol TVET College is a juristic person separate and distinct from South West TVET College although they are under one umbrella body being the Department of Higher education and Training.

RESPONDENTS’ CASE
The respondents called three witnesses as follows: –
First witness: Nkateko Shadrack Zitha, testified under oath as follows:
[23] He is the Assistant Director: Labour Relations Western TVET College. Each College is independently governed by its College Council and can develop its own policies. Although they co-operate with each other, what happens in another college is not binding on the other College.
[24] There is no Policy in the College or in the TVET Sector that talks to the notion of cross-transfer. The only Policy that Westcol has is the DHET Transfer and Relocation Policy on page 32 of R1. The purpose of the Policy, as appears on its preamble and policy statement was to make provisions for resettlement of employees who are transferred to another place on the behest of the employer.
[25] In this case, the first applicant applied for transfer which was not approved as stipulated in the issues as narrowed.
[26] The Principal of Westcol TVET College commenced duty in November 2022. At that time, one of the significant challenges facing the institution related to internal disputes concerning existing vacancies. PL1 employees expressed dissatisfaction and demotivation over the trend of external candidates being transferred into PL2 posts, which effectively deprived internal PL1 lecturers of the opportunity to apply for promotion. In response, the College adopted a strategic approach whereby all vacant posts would be advertised, thereby ensuring equal opportunity for all interested candidates to compete for such positions.
[27] The first applicant can be transferred but not as a way of cross-transfer. She must leave her post vacant and the College would, in line with its strategic position, advertise the post. The second applicant would be allowed to apply.
Cross examination
[28] It was put to him that the decision to advertise posts, rather than to place individuals directly into them, was significantly influenced by the involvement of the trade unions. He conceded that, although he does not have direct knowledge of this, it is plausible that the unions played a central role in the adoption of such a decision.
Second Witness: Rhulani Mabasa, testified under oath as follows:
[29] She is employed by the DHET as an Assistant Director in the Labour Relations unit at the Regional Office. Her responsibilities include handling grievances escalated by TVET Colleges to the Regional Office. She attended to the grievance submitted by Ms Sephesu to the Regional Office, which concerned the refusal of a transfer request. Ms Sephesu had applied for the transfer on personal grounds. The Principal declined the request on the basis that it involved a proposed cross transfer. The Principal preferred to advertise Ms Sephesu’s post once she vacated it. The Principal’s reasoning was that this was in the interest of promoting fairness, workplace harmony, and labour peace.
[30] Her view is that the decision of the Principal was not unfair.

Third Witness: Lethukuthula Sishilo Mtshali, testified under oath as follows:
[31] He is the Campus Manager of Carletonville Campus since 16 January 2023.
[32] Ms Sephesu applied for transfer. He is not empowered to approve a transfer but can only recommend it. He outlined to Ms Sephesu his level of responsibility and conscientized her that the application may be declined by the Principal.
[33] He considered all the documents that were before him at the time, the basis for the application was her health. He recommended the application of Ms Sephesu.

ANALYSIS OF EVIDENCE AND ARGUMENT
[34] In terms of section 186(2) of the Labour Relations Act (LRA), an employer commits an unfair labour practice if it commits any unfair conduct in relation to inter alia benefits. The applicant bears the onus to prove on balance of probabilities that the employer has committed an unfair labour practice.
[35] Section 186(2) of the LRA defines unfair labour practice as follows: “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;

(b) unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
[36] It is now settled law that to constitute an unfair labour practice for purposes of the LRA and for the ELRC to have jurisdiction to deal with a dispute, the employer’s conduct complained of must involve any one of the unfair acts or omissions specified and listed in section 186(2). If not, then the conduct complained of does not constitute an unfair labour practice in terms of the LRA. This was confirmed by the Labour Court in South African Post Office v CCMA & Others (2012) 11 BLLR 1183 (LC) where the Court specifically held (at paragraph 18) that “The CCMA does not have a general unfairness jurisdiction. An employee referring an unfair labour practice dispute in terms of section 186 must demonstrate that it falls within that section.”
[37] I have advised the applicant that complaints regarding transfer of employees are not specifically listed in section 186(2) of the LRA and as such these disputes cannot be arbitrated at the ELRC unless the transfer has an impact on the provision of benefits enjoyed by the employee, is imposed as a disciplinary sanction or if the employee contends that the transfer resulted in a demotion.
[38] Accordingly, it was the responsibility of the employee to demonstrate why the employer’s decision to deny her transfer constituted an unfair labour practice in respect of benefits.
[39] A benefit has been defined in the case of Apollo Tyres South Africa (Pty) Ltd v CCMA and others (DA 1/11) [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC). It was held that term benefit includes a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion.
[40] Many benefits are extras (usually sounding in money) that are given to employees as a quid pro quo for services rendered or performance.
[41] A transfer in itself is not as existing advantage or privilege to which an employee is entitled ex contractu or ex lege or granted in terms of a policy or practice subject to the employer’s discretion. No employee is entitled to a transfer and as such, cannot be claimed as a right.
[42] The respondent rightly argued that there exists no departmental policy, regulation, or contractual provision that accords the applicant a right to a cross-transfer, as claimed. Consequently, the applicants cannot assert an entitlement to such a transfer. A mere expectation does not give rise to a legally enforceable right.
[43] The applicants did not establish that the transfer constituted a benefit, nor did they demonstrate how the refusal to grant the cross-transfer impacted the provision of their benefits. The first applicant joined Westcol TVET College not through a transfer but as a newly recruited employee who applied for and was appointed to the position. Her request for a transfer to another college is based on personal reasons and was not initiated at the behest of the employer.
[44] In essence, the applicants failed to demonstrate that this case fell within the ambit of section 186(2) of the LRA. As such, the council does not have jurisdiction to entertain the applicants’ claim.

AWARD

[45] The ELRC does not have jurisdiction to entertain the applicants’ claim.

[46] The is no order as to costs.

Signed and dated at Pretoria on this 14 day of October 2025