IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC512-24/25EC

In the matter between

NAPTOSA obo MELVIN VAN ROOYEN Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE First Respondent

LHD CUNNINGHAM Second Respondent

Arbitrator: Pumeza Ndabambi

Date of award: 9 May 2025

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) – unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(v) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 27 January 2025, 28 February 2025, and finalised on 16 April 2025, at Ethel Valentine Building in Gqeberha. The Applicant, Mr Melvin van Rooyen, was represented by Adv G.D.Saayman, an official of NAPTOSA, the First Respondent, the Eastern Cape Department of Education, was represented by Ms Annalie Slabbert, the Labour Relations Officer and the Second Respondent, Mr LHD Cunningham, was represented by Mr S.Mtywaru, a shopsteward from SADTU.
2. The parties agreed to submit written closing arguments by no later than 23 April 2025 and both parties complied.
3. The proceedings were electronically recorded

ISSUE TO BE DECIDED

4. I am required to determine whether the District Director has the authority to appoint the incumbent without an amended recommendation from the SGB and whether one of panel members is a relative of the Applicant and whether the appointment was fair.

BACKGROUND TO THE ISSUES

5. The Applicant applied for a position of Principal (P4) for Kronenberg Primary School in Nelson Mandela Bay and was shortlisted and invited for interviews. He was not recommended by the School Governing Body (the SGB) for appointment on 20 May 2024. There was one ratification meeting. The Applicant was placed as No. 1. The incumbent was placed 3rd in the recommendations. The District Director approved the appointment of the Second Respondent, Mr LHD Cunningham without an amended recommendation of the SGB on 23 August 2024.
6. The Applicant prays for the appointment to be set aside and the Applicant be promoted to the position of Principal – Kronenberg Primary School.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant’s Version

7. The version of the Applicant was led through the evidence of 2 witnesses and a bundle of documents, the summary of which is outlined below:
8. The Applicant applied for the position by submitting an application form, in which he attached his ID copy, matric certificate, university statement of results, SACE registration and CV. He holds a Bachelor of Economics, Diploma in Education, and Diploma in Accountancy and is rated REQV-15. He was a caretaker Principal in a school that was dysfunctional and managed to turn the school around.
9. He is currently in a Post Level -3 position of SGB Co-ordinator and was in a Post Level-2 position for 4 years before this one and further worked as Subject Advisor in the Buffalo City Metro for 3 years and worked as Head of Department for 3 years. The Second Respondent was in a Post Level – 3 position. He therefore has more experience that the Second Respondent. The Second Respondent is further a SADTU stalwart and was preferred because of his SADTU credentials.
10. A ratification meeting was held on 20 May 2024 and the recommendation of the Applicant for appointment was presented. The checklist for the SGB recommendation is attached, followed by the route form and the recommendation are attached. The full process was followed and the Applicant was recommended for appointment.
11. The issue changed on 23 August 2024 when the District Director, delegated by the HoD, he was told that there was a grievance lodged by the Second Respondent that the Applicant and Mrs Fredericks, who was the SGB Secretary, were relatives. He was not aware that they are related and the relations are distant. The relations are such that his mother, who passed away in 1985 had a sister who also passed away 35 years ago. His mother’s sister was married to Oom Jan whose brother is Neels. Neels is the grandfather of Mrs Fredericks, and passed away when the Applicant was still young. He had no relationship with Mrs Fredericks personally and does not know her.
12. According to the Applicant Mrs Fredericks was called to explain the family relations and/or bias towards the Second Respondent. Mrs Fredericks confirmed she does not know the Applicant. Mrs Fredericks scored the Applicant 14/25 and scored the Second Respondent 13/25 and that does not indicate bias. The Applicant was recommended on the basis that he has management experience and at the time he was caretaker Principal of a dysfunctional school, as per Deputy Director’s plan. He was Subject Advisor responsible for management of all curriculum activities. As SGB Co-ordinator he had experience in Conflict Management between SGBs and Principals. He manages SGB elections as Electoral Officer. He has experience at school level and departmental level.
13. The recommended candidates’ scores are as follows:
    a. MO van Rooyen – 93
    b. V. Harris – 81
    c. LHD Cunningham – 83
14. All due process was followed, Applicant recommended for appointment and the recommendation was signed by the SGB Chairperson on 20 May 2024. Both the Applicant and the Second Respondent are Coloured males. The recommendation of the SGB was not approved by the District Director. He recommended the appointment of the Second Respondent and his comments on the recommendation are as follows: –
    “Mr LHD Cunningham approved. Superior in respect of proven managerial experience as a Deputy Principal.”
15. According to the Applicant the Deputy Director must have evidence in law and fact to deviate from the SGB recommendation and the Applicant is not aware that the District Director referred back to the SGB. The Applicant believes the District Director was influenced by SADTU or succumbed to the pressure or favoured the Second Respondent. The Applicant has a duty to train SGBs on management plans and sits with Chief Education Specialist (CES). It is therefore highly irregular for the District Director to keep the appointment for 3 months. It is also irregular to change the recommendation without the SGB and there is no evidence of an amended recommendation.
16. Alesteen Farieda Fredericks (Mrs Fredericks) testified that she was the panel secretary in the recruitment process leading to the appointment of the Second Respondent. The requirements on the advert for a PL-4 Principal are Management and Administration. He has no knowledge of relations with Mr van Rooyen. She was not influenced by Mr van Rooyen. Mrs Fredericks stated that there were no irregularities with their process. They decided on sufficient consensus.
17. Under cross- examination the Applicant confirmed that the Second Respondent was the Acting Principal at the school. She also confirmed that she still did not know of any family ties with the Applicant. They reached consensus as the SGB to recommend the Applicant but she would have expected Mrs Harris to be moved to No.1, in order of their recommendations.

Respondent’s Version:

18. The Respondent’s version was led through evidence of 3 witnesses and a bundle of documents, summarised below:
19. Mrs Faith Vanessa Meyer (Mrs Meyer) testified that she is Anestice Hendrikcs aunt and knows a certain Austin van Rooyen. Allestine’s mother was married to her father and her grandfather from the mother’s side is the Applicant. Mrs Meyer also confirmed that Mrs Fredericks recently lost her grandmother. The Applicant attended the funeral and does not know what happened thereafter. Allestine’s grandfather is the Applicant’s family and Allestine’s mother is the Applicant’s cousin.
20. Under cross-examination Mrs Meyer confirmed that she has no evidence that the Applicant was favoured by Allestine.
21. Ms Esme Maria Williams (Mrs Williams) testified that she was a panel member in the recruitment process for the Principal’s post and has served 6 years as SGB member. The panel agreed to apply sufficient consensus on the recommendation. After the interviews they had a meeting with the bigger SGB on the same day. As chairperson she gave feedback to all SGB members as to who is recommended as No. 1. Other parents questioned why. Mrs Plaatjies, Ms Tiervlei and Felix asked why Mr Cunningham was not chosen. She had always contacted Mr van Rooyen regarding SGB matters as they worked together on SGB issues. She answered a lot of questions from the SGB.
22. Parents felt that he was in the school for 5 years, had a vision which could benefit the school and made it clear that their preference was Mr Cunningham. She signed the minutes because of the agreement on sufficient consensus. Scoring was based on how they sold themselves. She also discovered that some panel members were new and could not debate and only agreed to what was said and done. Ms Fredericks took the minutes and she raised the fact that there was missing information and asked the minutes to be corrected and signed again. She did not want interview minutes that are signed the following day. She told Mrs Fredericks to record everything and leave nothing because if one thing is left out it can be a cause of a bigger problem. She was aware of how the interviews are done as she had been trained.
23. Mrs Williams testified that she was there to lead as she had been part of interviews previously. Overall the interviews went well. She confirmed that the Applicant had the best score and the Second Respondent was third best. The three candidates were good and presented well. She tallied the scores and gave them to Mr Hoko, who was the Resource person to see if they were correct. She normally compiles her own minutes as one could say the Second Respondent is her No. 1 but scores reflect differently.
24. Mr Hoko came to introduce the Second Respondent as the successful candidate, selected by the department. He told them they recommend and the department appoints. He requested to meet the SGB at the school at 09h00 and informed them and asked if they have any questions and there were no questions. Educators were called and informed that the Second Respondent is now the Principal. He told the Second Respondent that he is giving him a P4 school and does not expect a downgrade. Everyone congratulated and celebrated. The Second Respondent said he would give his utmost best to ensure the school progresses.
25. Mrs Fredericks was a newly elected SGB member, only Mrs Williams, Mrs Plaatjies and Mrs Francis had served 6 years in the SGB. They received training on a Thursday and Mrs Fredericks was not at school on the day. She denied attempting to influence SGB members and only gave guidance on what needs to be done. Mr Hoko advised them that if there is a person related to one of the panel members, that member must recuse herself. They further checked if all documents were certified, forms properly filled or not filled and if all required documents are there. Mrs Fredericks was the Secretary and was informed to notify all shortlisted candidates and Mr Hoko continued to give finer details.
26. Mrs Groenewald, who is one of the Educators at the school, spoke to Mrs Williams 3 days after the interviews at the steps. She told her that Mrs Fredericks interviewed her family member. Mrs Williams told Mrs Groenewald that they know teachers by their surnames not relatives or even their children. Mrs Groenewald and Mrs Fredericks also work together on a project and Mrs Groenewald explained how the Applicant is an Uncle of Mrs Fredericks. She could not go to the Acting Principal with the matter as he was also a candidate. They were advised to refer any person asking about the successful candidate to him and inform the person they have done their work and people must wait for the department to announce. She was not clear who to go to regarding the information from Mrs Groenewald.
27. Mr Hoko testified that he occupies the position of Circuit Manager and that Kronenberg Primary School falls within his area. Mr Hoko testified that he was called by the District Director and told there was a grievance and was asked to investigate relations between the Applicant and Ms Fredericks and further if the Applicant was appointable. He drafted a profile for each candidate. He was called twice by Ms Fredericks, surprisingly checking if there was a delay. The first time he told her there was a grievance and must start with the investigation whilst he was on vacation. The second time she called and Mr Hoko told her she is the one he must go to. When asked if she was related to the Applicant, her response was, ‘Not that I know of’. She was also surprised that the issue was about her.
28. Mr Hoko continued to provide a difference between the Applicant and the Second Respondent. He gave the differences between the difference in responsibility of a Departmental Head, a Subject Advisor and a Deputy Principal in terms of the PAM document. He said a Departmental Head looks after a department e.g Math & Science, guides/advises Educators and does moderation. A Subject Advisor deal with a specific subject and advises Educators in respect of that specific subject. A Deputy Principal is responsible for management and administration, acts in the absence of the Principal, manages all subjects, manages discipline, does leave management and drafts the time table for the school, to name a few.
29. Relevant to the Principal’s post and looking at the job description, the candidate who can immediately run a school is the Deputy Principal. A Departmental Head reports to the Deputy Principal, a Subject Advisor deals with a specific subject and from a distance the best, based on their job description is the Deputy Principal. He reiterated that it is not his duty as a Resource Person to determine the best candidate, but answered that the Deputy Principal would be suitable. If he had to choose the best, then it would be the Second Respondent. He always informs the SGBs that the final decision rests with the District Director to choose from the list. The District Director approved the appointment of the Second Respondent and that he is delegated authority of the HoD.
30. He read section 6(3) (a)(b)of the Employment of Educators Act (EEA) which provides as follows:
    a. “Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.

b. In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to:
i. ……….
ii. ……….
iii. ……….
iv. ……….
v. Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.”

31. In this case the District Director’s power is delegated by the Head of Department. Section 6(3)(f) of the EEA provides that despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list. Mr Hoko further said that the Applicant met him at SGB training and explained to him that he saw Mrs Fredericks and though it was going to create a problem because she is related to him, mentioned that either the father passed away or something. Mr Hoko spoke to Ms Fredericks whilst on vacation and thinks she was trying to say she is not involved.
32. Mr Ernest Gorgonzola (Mr Gorgonzola) testified that he is the District Director for the Nelson Mandela bay from 2017 and has been in the position for 7 years now. He is delegated to make appointments for Principals. He receives applications from HR and receives requests and makes recommendations. He appoints the most suitable candidates from SGB and irrespective of SGB order must recommend, taking into account all relevant information. The ultimate decision rests with him.
33. His duty is to look at the package and make his determination, considering:
    a. Size of the school – qualifications and experience of the candidate, to check how suitable one is compared to the school’s demands.
    b. He looked at all candidates, not only the Applicant and found he is well qualified for High School as his experience was gained in High School.
    c. Business studies is relevant for High School as he Subject Advisor – Business Studies which is suitable for High school.
    d. He had not been in class for a long time.
    e. He was office-based and not attached to a school – but a group of High Schools.
    f. He is a High School specialist.
    g. Primary School demands
    h. He has never been in a Primary School – he was a temporary Educator in Greenville for 9 months to put together governance structures and they withdrew his services in July.
    i. Applicant served as SCS for Governance and worked with SGBs
    j. His suitability for the post was considered, considering that it is a big school with over R1100 students and2 Deputies.
    k. He had to take into account the experience and the other candidate was a Deputy.
    l. The other was Departmental Head both in high school and primary school.
    m. The Second Respondent was a Deputy Principal and Acting Principal.
34. The two candidates can therefore not compare and he would have recommended the second candidate based on the profile of the Applicant that shows he’d been absent from a school for a long time. He is an excellent candidate but not for the school. When he receives an application bundle, candidates are brought to see the recommendation order. He asks the Resource person to give a profile of the three recommended candidates. When the profile comes he would have picked up a few discrepancies from having seen the documents.
35. The Applicant has a high school Subject Advisor profile and he and the Second Respondent have both over 20 years’ experience. The Second Respondent has experience in management in school, in the classroom. The purpose of a school is teaching and learning. A Subject Advisor is in office and a Principal is in a school and that kind of work is totally different and the post level is different. He needed one to step in as a Principal and not for re-training. The other candidates, Harris and Fraser had the necessary exposure and experience. 3 others had primary school experience. The Applicant is office-based. He did not recommend but appointed a Principal in terms of experience in management in school, in class and confirmed that section 6(3)(f) of the EEA gives him authority to appoint any person on the recommended list.
36. Under cross-examination Mr Gorgonzola confirmed that he started teaching in 1989 and had no leadership positions within SADTU. With the Second Respondent he was Departmental Head in both primary and high school and Afrikaans as a subject goes across primary and high school and was appointed in a primary school in terms of his proven managerial experience. He confirmed that the Applicant was placed as Caretaker Principal and revived governance structures, as a governance specialist he did that for the department and did some work in the school.
37. Mr Gorgonzola agreed that there was nothing wrong with Ms Harris and Ms Fraser and that he signed the appointment 2 and a half months later. Ms Harris had 28 years’ experience and that he considered all the applicants. The Applicant, as Operational Advisor was at a lowest level of management and does not necessarily mean a management position. The Second Respondent had more experience as a Deputy Principal and he preferred him. On his analysis the Second Respondent was the most suitable and the discrepancy was out of a grievance about a family member which was referred to Mr Hoko to investigate. He agreed that a Departmental Head can be appointed as a Principal. The Applicant was an office-based Educator.

ANALYSIS OF EVIDENCE AND ARGUMENT

38. Section 185 of the LRA provides that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. This section gives effect to section 23 of the Constitution of the Republic of South Africa. The dispute referred is an unfair labour practice relating to promotion and the employee bears the onus of proof.
39. In this matter it is common cause that the Open Post Bulletin for Principals, Volume 1 of 2024 was issued on 19 March 2024 advertising all the vacant principal posts in the province. It is further common cause that the Applicant applied for the post of Kronenberg Primary School. It is further common cause that the Applicant was shortlisted and invited for an interview for the post, with 4 other candidates. It is further common cause that the Applicant was recommended for appointment by the SGB but was not successful in his application due to the District Director appointing the Second Respondent, hence the present dispute.
40. On procedure the Applicant whether there were any irregularities in the process. The Applicant argues that it is irregular for the District Director to appoint on the basis of the most experienced candidate. In City of Cape Town v SAMWU obo Sylvester and others (C1148/2010)[2012] ZALCCT 40, it was held with reference to Arries that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following: –
    a. Whether the failure or refusal to promote was cause by unacceptable, irrelevant or invidious consideration on the part of the employer;
    b. Whether the employer’s decision was arbitrary, capricious or unfair;
    c. Whether the employer failed to apply its mind to the promotion of the employee;
    d. Whether the decision not to promote was based on bad faith; or
    e. Whether the employer’s decision not to promote was discriminatory; or
    f. Whether there were insubstantial reasons for the employer’s decision not to promote; or
    g. Whether the employer’s decision not to promote was based upon a wrong principle; and
    h. Whether the decision not to promote was taken in a biased manner.
41. The Applicant concludes that the employer acted on the basis of some unreasonable, irrelevant and invidious consideration. The employer further, in not promoting the Applicant, being the recommended candidate was arbitrary, capricious and unfair and worse the First Respondent acted in bad faith, based on evidence and argument. The Second Respondent lodged a grievance based on an unfounded complaint and hearsay to secure a promotion.
42. The District Director confirmed under cross-examination that he never said the Applicant was not the best candidate but in his analysis the Second respondent was the most suitable. There was also a grievance that he take Mr Hoko to investigate. Proven managerial experience is through being a Deputy Principal or Departmental Head. The Second Respondent had management and experience in school and the Applicant was office-based and that he never said anything was wrong with the Applicant.
43. In this matter the Applicant was recommended for appointment by the SGB of Kronenberg Primary school. He had the highest score compared to other candidates. The requirements for the position as per the advert are as follows: –
    a. A recognised three or four-year qualification in Education, which includes professional teacher education
    b. Certificate in management and leadership with be an advantage
    c. Registration with SACE as professional educator
    d. Good knowledge of teaching as provided for in the professional qualification
    e. Good management skills, Good leadership skills. Good co-curricular skills.
    f. Good people management skills. Good administrative skills. Good communication skills. Good knowledge of applicable educator legislation, regulations and policies.
    g. 7 years of actual teaching experience.
44. The Applicant’s experience based on the application form is that he had 33 years’ experience having started as a Post Level 1 Educator, moved to Departmental Head, Subject Advisor, SGB Co-ordinator and Caretaker Principal. The Second Respondent had 37 years teaching experience having moved from Post Level 1, Post Level 2 and at the time of the recruitment held a Post Level 3 position of Deputy Principal. The requirements of the position were of 7 years actual teaching experience.
45. The Applicant started off as an Educator and has the required number of years as an Educator. In fact all the candidates met the minimum criteria to be shortlisted for the position. They were all given a fair opportunity to compete for the post and the Applicant was scored higher. In terms of the scoring, Mrs Lomberg scored the Applicant 19/25, Ms Fredericks scored the Applicant 14/25, Mrs Elsabe Williams scored the Applicant 20/25, Mrs G.Africa scored the Applicant 21/25, Mr Haggard scored the Applicant 19/25.
46. Based on the above scores there can be no apprehension of bias as Ms Fredericks scored the Applicant the lowest marks compared to other panellists. Further the allegation of influencing members of the SGB was levelled against Mrs Williams not Mrs Fredericks. It can therefore not be seen how she was biased in favour of the Applicant in terms of scoring. Secondly Ms Fredericks denied any relations with the Applicant, even if they exist, they are not known to her as they are distant. The Applicant also stated that he did his own research and found out that there are some relations. This he became aware of after the interviews. Further there is no written grievance presented, other than verbal accounts of people who claim to have known about the relations. It is my finding that such relations did not come to play in the recommendation of the Applicant by the SGB.
47. Coming to the decision of the District Director to appoint the Second Respondent on the basis that he was the most suitable as a Deputy Principal who already performs some of the management functions. The Applicant strongly argued that it is unfair to appoint based on experience, which both parties had. The District Director stated that the Applicant is most suitable for high school and not a primary school which is demanding and further that he was an office based Educator who has not been in class for some time. However, the Applicant was shortlisted and scored higher than all the other candidates during the interviews.
48. I find that the Resource Person, when compiling the candidates’ profiles emphasised the fact that one was not or had never been a Deputy Principal. This emphasis created an impression that they were looking for a Deputy Principal, which is the Second Respondent. Had it not been the case, the District Director could have considered the second best candidate but instead moved to appoint the third best candidate who coincidentally is a Deputy Principal. That therefore raises an apprehension of bias, more so because the alleged grievance has never been tabled in the arbitration and if the Second Respondent knew or the other witness was aware of the relations, why was the issue not raised during the process. The manner in which it was raised shows that it was meant to discredit the Applicant. Such relations are not known to Ms Fredericks, and the Applicant became aware after researching the families involved and such relations are indeed distant.
49. The District Director in considering a Deputy Principal created a new requirement that in order for one to be experienced in management and administration had to be a Deputy Principal and him trivialising the fact that the Applicant was also a Post Level 3 Educator adds to the impartiality with which he exercised his discretion.
50. In Kimberley Junior School v Head of the Northern Cape Department of Education [2009] 4 AII SA 135 (SCA), the court held that a recommendation by the SGB is an essential prerequisite for the appointment of an educator in a departmental position, without such recommendation the HOD acts ultra vires and unlawful.
51. In this matter, a recommendation was made by the SGB, having followed the correct procedure. Section 6(3) of the EEA provides that:
    ““Subject to paragraph (m), any appointment, promotion or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the governing body of the public school and, if there are educators in the provincial Department of Basic Education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned”.
52. In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to:
    a. ……….
    b. ……….
    c. ……….
    d. ……….
    e. Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body”.
53. In this matter both the Applicant and the Second Respondent are Coloured males, so there was no question of equity, should there have been such considerations, probably Mrs Harris would have been appointed to address such gaps, if any, in considering her as a woman, falling within the designated groups.
54. I have already found that the issue of undue influence due to the alleged relations between the Applicant and the panel member, Mrs Fredericks, cannot be established based on the scores and the fact that such relations were not known to both parties. They were also presented in a hearsay fashion, with the SGB member hearing from Mrs Meyer and Mrs Williams, who did not know who to tell or report, having received advice from Mr Hoko to communicate with him all matters arising out of the recruitment process.
55. Section 6(3)(f) of the EEA provides that:
    “(f) Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.
    (g) If the Head of Department declines a recommendation he or she must–
    (i) consider all the applications submitted for that post;
    (ii) apply all the requirements in paragraph (b) (i) to (iv); and
    (iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.
56. There is no evidence that he considered all the applications of the candidates, but only those of the recommended candidates and whilst the ultimate decision rests with the District Director, in this matter, as delegated by the Head of Department, it seems he was looking for a Deputy Principal to apportion more experience and appoint that candidate, given that the only Deputy Principal was the Second Respondent.
57. I therefore find that in the absence of an irregularity in the process and the recommendations based on scores, there is no evidence to the effect that the Second Respondent was unfairly scored or unfairly denied an opportunity to compete for the post. The Applicant was indeed the best candidate and should have been appointed. The Applicant has therefore discharged the onus to show that he was the best candidate and that the decision not to promote him was not rational and constitutes an unfair labour practice.
58. In Noonan v SSSBC and others [2012] 56 ILJ (LAC), it was held that there is on right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity to compete for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
59. Coming to the remedy, the Applicant sought a remedy in terms of section 193(4) of the LRA, which provides that an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
60. Section 28(2) of the Constitution of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. In terms of this Constitutional provision, whilst the Applicant prays for setting aside of the appointment, the Second Respondent is suitably qualified to hold the position but only that he was not the recommended candidate and that his appointment had an element of bias. It, therefore, is not in the interests of the school to set aside the appointment as children will suffer should the Principal be removed and the stability of the school will be negatively affected. At all times we must be cautious in taking decisions that will negatively affect teaching and learning.
61. A further consideration is the public interest as the school enrols over 1000 pupils and such pupils have their parents and the community interested in what is happening at the school. To ensure stability we need to ensure that the decision will not destabilise the school and cause anxiety to educators, learners and their parents. It is incumbent upon myself to treat the matter with the utmost sensitivity and ensure all interests are considered when remedying the matter.
62. In the circumstances, having found that the First Respondent’s conduct amounted to an unfair labour practice, and the Applicant having prayed that the appointment be set aside and that he be appointed in the position. I find that in terms of section 194(4) of the LRA that an order of compensation is just and equitable in all the circumstances outlined above. Compensation equivalent to four (4) months remuneration calculated at the Applicant’s rate of pay equivalent to R53 044.75 per month X 5 months = R212 179.00.
63. In the circumstances, I make the following award:

AWARD

64. The conduct of the Respondent, Department of Education: Eastern Cape, in not appointing Applicant, Melvin Oatin van Rooyen, to the position of Principal: Kronenberg Primary School, constitutes an unfair labour practice
65. The Respondent, Department of Education: Eastern Cape, is ordered to pay compensation to the Applicant, Melvin Oatin van Rooyen, compensation equivalent to four (4) months’ remuneration, as calculated in paragraph 61 above, amounting to R212 179. 00.
66. The amount in paragraph 64 above, must be paid to the Applicant, Melvin Oatin van Rooyen, by the Respondent, Department of Education: Eastern Cape, by no later than 30 June 2025.

PUMEZA NDABAMBI
PANELLIST: EDUCATION LABOUR RELATIONS COUNCIL