16 April 2026 – ELRC1230-25-26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

Case No: ELRC1230-25-26GP

In the matter between

VUSIMUZI ISAIAH MTIMKULU Applicant

and

DEPARTMENT OF HIGHER EDUCATION AND Respondent
TRAINING-SEDIBENG TVET COLLEGE

ARBITRATOR: Nakedi Machaka
HEARD: 25 March 2026
FINALISED: 25 March 2026
DELIVERED: 16 April 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – Unfair Labour Practice – Benefits

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration hearing was convened under the auspices of the Education Labour Relations Council (ELRC) on March 25, 2026, and concluded the same day via the virtual platform Microsoft Teams.

[2] The applicant, Vusimuzi Isaiah Mtimkulu, attended the arbitration hearing and represented himself. The respondent, the Department of Higher Education-Sedibeng TVET College, was represented by Jacob Olifant, the Deputy Principal Corporate Services at Sedibeng TVET College.

[3] The Parties submitted their documentary evidence, which was referred to during the submission of their respective testimonies, as confirmed by the digital recordings of the arbitration hearing.

[4] The parties were requested to submit written closing arguments and directed to do so by 01 April 2026. Both parties complied. I have considered their arguments in arriving at my findings without necessarily repeating them verbatim.

[5] The proceedings were conducted in English and recorded digitally. Interpretation services were not required.

PRELIMINARY ISSUES

[6] The parties raised no preliminary issues.

BACKGROUND TO THE DISPUTE

[7] The applicant, Vusimuzi Isaiah Mtimkulu, is employed by the respondent as a Lecturer and began his employment on 30 May 2017.

[8] The applicant referred a dispute regarding an unfair Labour practice related to benefits to the ELRC. The applicant claims that the respondent excluded him from marking in April and August 2025 because of the conduct of the Head of Department (Ms. Mapoli) at the Sedibeng TVET College, who denied him the opportunity to mark. The applicant further claims that marking is a recurring benefit.

ISSUE/S TO BE DECIDED

[9] I must decide whether the respondent committed an unfair labour practice by denying the applicant a benefit. If I find any unfairness, I must determine the appropriate relief.

SURVEY OF EVIDENCE AND ARGUMENT

APPLICANT

[10] The applicant was the sole witness to provide evidence in support of his case. The summary of the material aspects of the evidence and argument presented by the applicant follows:
[11] The applicant stated that he has been a lecturer at Sedibeng TVET College, Vereeniging Campus, teaching industrial electronics N5 since May 30, 2017.

[12] He stated that the dispute is characterized as an unfair labour practice under section 186(2) of the Labour Relations Act, specifically the denial of benefits, training, and promotion, and the arbitrary exclusion from DHET external marking cycles in April, August, and November, despite the August 2024 approval.

[13] The employee claims he was unfairly excluded from external marking cycles in April and August 2025.

[14] The applicant testified that he was excluded from external marking after the HOD informed him that he would not be eligible to mark because of a pending disciplinary hearing against him. The applicant referred to the Memorandum from the Chief Directorate: National Examination and Assessment, titled Memorandum TE17 of 2024: invitation to apply to mark 2024/25 External College Examinations. The applicant, inter alia, referred to clause 7, which reads as follows:
“Lecturers who are under suspension are eligible for appointment.”

[15] The employee states that he was told by the HOD, Mrs. Mufunoa Mapholi, not to attend the marking centre in April 2025 due to an ongoing disciplinary hearing and a misinterpretation of Section 7 of memo TE 17, which refers to lecturers on suspension.

[16] The applicant stated that in March 2025, when he spoke with the HOD, he was unaware that a precautionary transfer is different from a suspension.

[17] The applicant conceded that at the time of his conversation with the HOD, he understood and/or accepted that he was not eligible for appointment to external marking. He stated that as a result, he did not go to marking.

[18] The applicant confirmed that he signed and returned a secrecy form and a response form (Annexure K) in March 2025, accepting the offer to mark in April 2025. He believes this serves as proof of conditional appointment.

[19] The applicant seeks a finding that the respondent committed an unfair labour practice, compensation for lost marking pay (estimated at approximately R50,000 for two cycles), and inclusion in the April 2026 and August 2026 marking cycles.

Employer

[20] One witness, Naledi Motaung, gave evidence in support of the employer’s case. The summary of the material aspects of evidence and argument as presented by the employer follows hereunder:

[21] Mr. Naledi Motaung stated that he is the Campus Manager at Sedibeng TVET College. His duties include administering registration, managing examinations, supporting teaching and learning, and maintaining infrastructure. Mr. Motaung confirmed that he knows Mr. Mtimkulu, a lecturer at Sedibeng TVET College.

[22] He outlined the process for appointing external markers. He stated that lecturers apply on the department website, receive application forms, submit them to the HOD for endorsement, then to the campus manager for endorsement, and finally to the Deputy Principal Academic (DPA), who chairs a meeting with organized labour to present the applications. The DPA sends the endorsed applications to the department, which then sends conditional appointment letters to successful applicants. He stated that lecturers must respond to the conditional appointment, sign a secrecy letter, and bring a release letter to the HOD, who checks the conditions and forwards it to the campus manager for signature. The campus manager is the only one authorized to sign the release letter. Afterward, the college is no longer involved in the appointment process for external markers.

[23] He stated that for subsequent marking cycles within the same examination cycle (e.g., April and August after November), lecturers do not reapply; instead, they receive conditional appointment letters directly from the department.

[24] He stated that the college’s role in the marking process ends with endorsing applications and releasing appointed lecturers; the college does not have the authority to appoint markers. Mr. Motaung stated that Mr. Mtimkulu’s application for the 2024-2025 examination cycle was endorsed, allowing him to mark in November 2024. Mr. Motaung clarified that if Mr. Mtimkulu did not mark in April or August 2025, it would be due to the department’s decision, possibly based on performance or script numbers, not college interference. He stated that Mr. Mtimkulu did not submit conditional appointment letters to the campus manager’s office for release to mark in April or August 2025.

[25] He stated that the department, not the college, appoints markers. The release letter for external examination duties requires the campus manager to declare that the official is currently teaching the subject, qualifies to mark, is under supervision, will not leave classes unattended, has completed campus duties, is not under suspension, and has no health conditions that pose a risk. If a lecturer has not completed assigned duties, the campus manager notes this on the release letter, but the final decision on whether they mark rests with the marking centre.

[26] Mr. Motaung stated that he is not aware of any waiting list for lecturers to mark, noting that it would be with the appointing parties (the department). Mr. Motaung could not confirm whether Mr. Ramafothole was appointed without an application, stating that he is not privy to the department’s appointments.

[27] Mr. Motaung stated that even if an HOD advises against releasing a lecturer, the final decision rests with the campus manager, and Mr. Mtimkulu never brought a conditional appointment letter to his office for April or August 2025. Mr. Motaung confirmed that conditional appointment letters are only sent to successful or appointed markers.

[28] The respondent (represented by Jacob Oliphant) denies that it committed an unfair Labour practice, stating that the college does not appoint external markers and has no control over the marking centre’s appointment process.

[29] The respondent argues that external marking is not a benefit under the employee’s contract and that appointments are made by the Department of Higher Education and Training (DHET) based on applications and conditional appointment letters.

[30] The employer contends that the employee was not appointed for the April 2025 marking cycle, citing the absence of a conditional appointment letter. The employer challenged the employee and gave him 5 days to submit the conditional appointment letter for April 2025, if he had it.

ANALYSIS OF EVIDENCE AND ARGUMENT

[31] The Labour Relations Act is silent on the onus of proof for unfair labour practice; it is trite and generally accepted that the party alleging an unfair labour practice, in other words, the applicant, must prove the allegation. In this matter, the applicant alleges an unfair labour practice under section 186(2) of the Labour Relations Act, specifically the denial of benefits and the arbitrary exclusion from DHET external marking cycles in April and August, despite the August 2024 approval.

[32] In Apollo Tyres SA (Pty) Ltd v CCMA and others [2013] ZALAC 3; [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (handed down on 21 February 2013), the LAC held that a benefit under the LRA means existing advantages or privileges to which an employee is entitled ex contractu or ex lege, or granted under a policy or practice, subject to the Employer’s discretion.

[33] In applying the principles established in Apollo Tyres to the facts in this case, the following question must be answered:
33.1 Whether there is an advantage or privilege for external marking that the
The applicant in this matter is entitled to ex contractu or ex lege, or that is
granted in terms of a policy or practice, subject to the Employer’s discretion?

[34] Although the Emfuleni Local Municipality v SALGBC and others (JR 741/16) [2019] ZALCJHB 367 dealt with a dispute over an alleged unfair labour practice relating to promotion, I am of the view that the principle established in that case is relevant to the current case, insofar as it relates to the following:
34.1 If regard is had to the facts in casu, whether the dispute before me is the one that is arbitrable under the unfair labour practice regime?

[35] If the answer to the question in paragraph 33.1 is negative, that there is no benefit relating to marking that the applicant in this matter is entitled to ex contractu or ex lege, or that is granted in terms of a policy or practice, subject to the Employer’s discretion, it would then be necessary to answer the question in 34.1.

[36] For the sake of clarity regarding the principle I referred to in paragraph 34 above, I have deemed it necessary to refer to (handed down on 11 November 2019). The Labour Court held, among other things, that:
“….in the present instance, there is no evidence that the adjustment of the Employees’ job grades to grade 6 would result in any greater responsibility, authority, or status. Indeed, the Employee’s case is that they are entitled to be engaged in job grade 6 because they perform the same work as those of their colleagues in that grade, and that they enjoy the same status as Law Enforcement Officers. There was thus no dispute about promotion.

    The evidence overwhelmingly suggests that the true dispute between the parties is one that relates to job grading; specifically, a contention by the Employees that their posts should be graded at a higher level. The Employees have established no right, whether by way of collective agreement, regulatory measure and the like, to have their jobs graded at level 6. The Employees’ dispute is thus not arbitrable under the unfair labour practice definition.

    In summary, the Commissioner committed a reviewable irregularity by assuming that the dispute before him was one of an unfair labour practice relating to promotion. He misconceived the nature of the enquiry, and his award was reviewable on that basis.”

[37] I now address the questions raised in subparagraphs 33.1 and 34.1 as follows:
Whether there is an advantage or privilege for external marking that the applicant in this matter is entitled to ex contractu or ex lege, or that is granted in terms of a policy or practice, subject to the Employer’s discretion?

[38] Having regard to the evidence before me, my finding is that external marking is not a benefit accruing from the employment relationship between the applicant and the respondent, where the applicant is a lecturer in the respondent’s employ. It is an opportunity that exists outside the parties’ employment relationship. The applicant is a lecturer at Sedibeng TVET College, and the alleged benefit cannot be linked to his employment as a lecturer. To be appointed as an external marker, the applicant must follow the application process outlined in paragraphs 22 to 25 of this arbitration award. The marking appointment exists independently of his employment as a lecturer. It is not an entitlement accruing to the applicant ex contractu or ex lege, nor is it granted in terms of a policy or practice, subject to the employer’s discretion.

[39] I therefore turn to the second question, which is as follows:
Is the dispute before me arbitrable under the unfair Labour practice regime?

[40] To answer this question, reference should first be made to the relevant provisions of section 186(2) of the LRA, which reads as follows:
“Unfair labour practice means any unfair act or omission that arises between an employer and 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 provision of benefits to an employee;” (own emphasis)

[41] Having regard to the facts of this case, and in particular the finding that the benefits claimed do not exist, it is my finding that where the benefit does not exist, or where the right being claimed is an external opportunity existing outside the employment relationship, there cannot be an unfair act or omission that can arise between the employer and the employee involving unfair conduct by the employer relating to the provision of a benefit to an employee. The invocation of the provision of a benefit under section 186(2) presupposes its existence. It naturally follows that if a benefit does not exist, the scrutiny of the employer’s discretion, which is at the centre of an unfair Labour practice, would never arise or be at play.

[42] Following the legal principle set out in the above-cited cases of Apollo Tyres SA (Pty) Ltd v CCMA and others, and Emfuleni Local Municipality v SALGBC and others (JR 741/16) [2019] ZALCJHB 367, and the provisions of section 186(1)(2) of the LRA, I find that the applicant’s dispute is not arbitrable under the definition of unfair labour practice, and, as a result, the ELRC has no jurisdiction to entertain the dispute in terms of section 191 of the LRA.

AWARD

[43] For the reasons set out above, I find that the applicant’s, Vusimuzi Isaiah Mtimkulu’s dispute is thus not arbitrable under the unfair labour practice definition as envisaged in section 186(2)(a) of the LRA and that the ELRC lacks jurisdiction to entertain the dispute in terms of section 191 of the LRA.

[44] Accordingly, no relief is awarded.