16 September 2025 – ELRC105-25/26GP

Commissioner: Grace Mafa-Chali
Case Number: ELRC105-25/26GP
Date of Award: 16 September 2025

In the arbitration between:

SAOU obo Lucas Hendrick Gouws Applicant
And

Gauteng Department of Education 1st Respondent
Sibusiso Daniel Ndlovu 2nd Respondent

THE DETAILS OF THE HEARING AND REPRESENTATION

The arbitration proceedings were held on 21 and 22 July 2025 and 12 and 18 August 2025 virtually on Microsoft Teams.
The Applicant, Mr H L Gouws was represented by SAOU official, Ms Gwendy Behr. The 1st Respondent, Gauteng Department of Education was represented by Mr Leka Magodielo, and the 2nd Respondent, Mr Sibusiso was represented by SADTU official, Mr Kwena Ramolobeng.
Parties concluded the pre-arbitration meeting on 26 June 2025 and the signed minute was filed and marked Bundle B.
Parties exchanged bundles of documents and agreed to use the consolidated bundle of documents marked Bundle A.
At the end of the proceedings, parties requested to file closing arguments and they were directed to do so by latest, 26 August 2025. All the parties have obliged with their submissions. I have considered the parties’ arguments in the analysis of the evidence and findings hereunder without necessarily stating them verbatim.
The arbitration proceedings were digitally recorded and interpretation services were not required.
ISSUES TO BE DECIDED
I must decide whether or not the 1st Respondent committed unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) as amended, by sifting out the Applicant’s application from the shortlisting process.
If so, I must determine the appropriate relief.

BACKGROUND TO THE DISPUTE

The Applicant is employed as a Post Level 1 Educator at Unica School since 01 January 2017 at a basic monthly salary of R31 043.00.
The 1st Respondent advertised for the Departmental Head position in the Vacancy Circular 05 of 2024 on 29 July 2024 for Unica School.
The Applicant and 2nd Respondent were amongst the candidates who applied for the position.
The Applicant’s application was sifted out and was not taken through to the shortlisting process. The Applicant’s application was disqualified during the sifting because he used the old version of the GDE2R form to complete his application.
The 2nd Respondent was sifted, shortlisted and interviewed with others and was appointed for the position as a successful candidate effective 01 May 2025.
The Applicant is challenging the Respondent’s decision, hence, the 2nd Respondent was joined in the arbitration proceedings because the Applicant seeks the relief to set aside his appointment and that the process be redone.
The Applicant lodged a grievance with the 1st Respondent on 18 November 2024 by email to the Tshwane South District office, but his grievance was never entertained until the appointment of the 2nd Respondent was made. The 1st Respondent was required to hold a District Grievance Committee meeting in terms of the ELRC Collective Agreement 01 of 2021 to deal with the Applicant’s grievance but it failed to do so.
The Applicant submitted that it was unreasonable and unfair to disqualify him on the basis of the old GDE2R form as other candidates within the Respondent in the same district at other schools also used the old GDE2R form and after they lodged the grievances, the processes were done. The Applicant believed that he must also be treated the same as those and also be treated the same.
The 1st Respondent submitted that it was not unreasonable and unfair to disqualify the Applicant ‘s application as he has not followed the Vacancy Circular guidelines by using the old GDE2R form not the enclosed form, and his claim must be dismissed.
The 2nd Respondent submitted that he was the best candidate for the position and the 1st Respondent followed fair and proper recruitment procedure in his appointment; and prayed that whatever decision to be reached in this matter should not affect him and his appointment in anyway.

SURVEY OF PARTIES’ EVIDENCE AND ARGUMENTS
Applicant’s Evidence
Hendrik Lukas Gouws testified under oath as follows:

He is employed as an Educator at Unica Elsen School in Rietfontein under Tshwane South District of the 1st Respondent. He teaches Computer skills and hydrophobic in exit phase for ages 18-21, preparing the learners to be ready to go to work.
He applied for the Departmental Head vacant position at Unica School on 01 August 2024. The post is for senior phase ages 14-18. He used the GDE2R form that is on the internet. He believes the form he used to complete his application was the correct one. He also asked his colleagues if it is the correct form to apply for the position.
His completed application is on Page 13 of Bundle A. the 2nd Respondent’s application is on Page 19 of Bundle A. The headings, personal information, contact details, languages, qualifications are all the same on both application forms. He added columns on heading for additional certificates and other courses attended.
There was no enough space on the columns in the form. He also added information for skills under no.8 on Page 16, experience no.9 (a) and (b), and no. 10 extra curriculum activities.
Page 21 of Bundle A on the 2nd Respondent’s application contains the same headings as on his application. In his application he added more qualifications in the additional column as there was no enough space in the application form so that it could make his application more successful.
Page 18 is the references, declaration, signature and the date. The headings in both his application and the 2nd Respondent are the same. He added a few columns to his achievements and qualifications. He did not change anything in the form.
The only difference in both applications is the post number on his application. There are no blocks whereas on the 2nd Respondent’s application there are blocks. On his, he wrote the post number by hand.
He submitted his grievance on 18 November 2024. Afterwards, the school sent invites for interviews which were held and the position was filled. He became worried as he was under the impression that his grievance was to be dealt with first. He informed his union about the appointment and that his grievance was not dealt with. He never received any communication regarding his grievance.
He felt like he was not given an opportunity to attend the interviews. The two application forms are the same. All the information is the same. It is just on the post number that is different.
Page 31 is the vacancy no.5 of 2024 for Educator (promotion) PL 2-4, Chief Educator Therapist and Learner Support Educator (LSE) post at public ordinary and public special schools of 29 July 2024 with the closing date of 16 August 2024.
Point 43 is the information when applying and 43.1 is the application form, read bullets 1 and 2 into record. It stated that the GDE2R form evaluated is to be submitted for the post. He understood that the form he used is the correct one.
The 2nd Respondent also used the GDE2R form which was marked by the 1st Respondent as the correct form. He sees the two forms as both GDE2R forms.
The position has been filled and it is a very long road for him. He is one of the oldest teachers at the school with the experience and expertise. He thought for 8 years, he would be HOD. He has worked hard and invested his time in the learners but could not even be shortlisted.
He feels demotivated and it works on his mental health a lot. He has put all the work to be a better person. He wanted to take the next step in the system. It has definitely taken a toll on him in every way.
Pages 16 and 16 of Bundle A contains his experience. He is a well qualified teacher and expert in the field with Elson schools. He has the right qualifications to be appointed in the post. All his qualifications are on paper and that is what they wanted for the post. He has 8 years’ experience in Elson schools to make sure that the HOD position is his. He is also experienced in children with severe intellectual disorders (SID) and can teach learners diagnosed with autism. DCAPS is the curriculum at schools for the programme. The 1st Respondent should have accepted the GDE2R form he used as he found it on the internet system and the only difference is on the post number.

Wilma Henna testified under oath as follows:

She is the Provincial Secretary for SAOU, Gauteng. She is mostly occupied in attending task teams and chamber meetings and liaising with the department on member queries.
Page 77 of Bundle A is the minutes of the Chamber Meeting held on 05 June 2025 at Gold Reef City, Johannesburg. They discussed issues involving their members. At the task team meetings, discussions are taken and they are ratified at the chamber meetings by the representatives. A chamber meeting is held by a team to ratify minutes of task team meetings.
Page 85 of Bundle A is the ratification of Collective Agreement 02 of 2024. The report is dated 15 May 2025. It was adopted by the chamber. The report is binding on all the parties, that is labour and the employer. Labour is represented by CTU and SADTU.
Page 76 is the minutes of the Collective Agreement 02 of 2024 Task Team Meeting of 13 May 2025. As it is binding, every constituency that attended the meeting is bound by the decision taken, and everybody gave a go ahead to the decision. Page 75 of Bundle A- Paragraph 4 stated that there was a concern that some districts were not accepting the GDE2R. paragraph 48 states that the employer was aware of districts that were not accepting the old application forms and a warning was issued. They requested organized labour to report specific districts that still rejected old GDE2R forms so that the employer can deal with them.
The unions indicated that members apply for Level 3 and 4 promotional positions and as a practice use GDE2R forms and during the sorting process, their applications are not taken to schools for interview processes as districts have problems with the old forms. They had a lot of success with some districts but still have problems with Tshwane South as sometimes they do not accept GDER2 forms and sometimes they do.
They must accept the GDER2 forms as long as it contains information about the position, personal details, experience etc, and as long as the form is filled up with no additions or things taken out of the key areas, the application must not be deemed to be automatically disqualified. Districts must accept them as proper applications for the post.
Page 70 of Bundle A is the Labour Court judgement adjudicated between Solidarity union on behalf of members and Gauteng Department of Education dated 05 November 2024. The judgment pertains to a grievance lodged for an advertised post at Wierda Park Laerskool. The Court found in favour of the Applicant that the GDER2 forms must be accepted and process be redone.
Page 72 is the outcome of the grievances lodged to Tshwane South District dated 07 November 2024 from Director A.M Nkadimeng. It is the outcome of the grievance that was investigated on the principal post that the application was not sifted and shortlisted for interviews. The outcome was that the grievance is substantiated and the SGB is ordered to redo the process within the next 21 working days. The post number in question is TSS4ED1006.
Page 91 of Bundle A is the email communication from the Provincial Secretary of SAOU, Gauteng, Ms Liesl Rehbock to Ms Sylvia Steytler dated 30 May 2025. The response of Ms Steytler has given a list of cases with grievances and feedback on status from Tshwane South District. The case of then is Applicant is also included at no.2 in the list and the outcome is awaiting arbitration outcome. The grievance of Solidary on behalf of members is the one with a Labour Court judgement. The process was also redone and a new principal was appointed. In the grievance of Ms M Fourie, the process was also redone and the post was re-advertised in July 2025. The last one is for Ms K Davel, in which the process was also redone and the post re-advertised in July 2025. All other cases fall under Tshwane South District.
The GDER2 form on Page 13 of Bundle A for the Applicant is the same as the one on Page 19 of Bundle A for the 2nd Respondent, with the same headings, personal information, previous employment etc. The only difference is that in the form on Page 13, the wording is different, in the post number there is ED filed in already in the form for 2nd Respondent whereas there is no ED on the Applicant’s form.
The Applicant’s form has additional columns with certificates and courses under no.7 on Pages 13 and 14 of Bundle A, as compared to Page 20 with details of languages, qualifications. The information on Pages 15 and 21 of both forms, is also the same on skills, management and leadership, experience, current employment, previous employment, extra-curricular activities, certificates and skills, references listed, declaration and signatures.
The 1st Respondent must indicate what is wrong in the Applicant’s GDER2 form as compared to the 2nd Applicant if it was disqualified for shortlisting process, as there is no difference in the numbering on the two forms. Applicants are allowed to add in the tables any additional information and more references.
Page 31 of Bundle A, is the Vacancy Circular 05 of 2024 and specifically point 4.3.1, indicates that the GDER2 form enclosed must be used as the only form to be recognized and it replaces the CV. Taking into account the outcome of the court case and the grievances mentioned, email conversations with Ms Steytler, as long as the applicants use the GDER2 form, they must not be eliminated if they have complied with instructions and all necessary information is provided as indicated by the court that the form must be accepted. Sylvia Steytler testified under oath as follows:
Her role in the Gauteng Department of Education is recruitment and selection processes in the directorate, overseeing the region and the six districts -Tshwaga- Gauteng West, Tshwane North, Tshwane South, Gauteng North and Tshwane West.
She was not part of the sifting process for the Vacancy Circular 05 of 2024. The GDE2R form should be looked in conjunction with the instructions in the circular of the post at Page 73 of Bundle A. The Task Team Meeting of 13 May 2025 was attended by the departmental officials, including her director in recruitment and selection.
She was not aware of any concerns raised about districts not accepting old application forms as recorded on Page 75 paragraphs 45 and 48 of Bundle A, as she was not a party to those discussions in the meeting. They do receive communication or emails regarding feedback from meetings with the director but she is also not aware of such instructions issued as it never came to their attention.
The Vacancy Instruction in the circular 5 of 2024 like every vacancy, includes the instructions as on Page 33 of Bundle A on how to complete the application form. There should be a GDE2R form enclosed in the pack of the vacancy and if someone used old version of the application form, the person will be disqualified as the instruction says use only the enclosed form.
She was not in attendance in the meeting of 13 May 2025 and as such did not know what was discussed. Pages 91 to 94 of Bundle A is a trail of emails regarding communication of SAOU grievances and GDE2R form. Ms Liesl Rehbock addressed an email to her on 30 May 2025, thanking her for the feedback about the status of grievances related to GDE2R application forms and the status of the grievances. She forwarded the email to the Director, Mr Patrick Seloma and copied others, Nontebeko Zulu, Business Director and Thabiso Maphosi on the grievances escalated due to educators disqualified due to the old GDER2 forms.
Mr Seloma responded to her to contact Mr Mafuye and Mr Mafuye sent her an email on same date, 30 May 2025 at 11:33, that matters listed were addressed by their office and have since been referred to ELRC. She was made to understand that the grievances were made on posts disqualified due to the old GDE2R forms and three of those processes were redone and one for the Applicant was still awaiting arbitration outcome.
Page 70 of Bundle A is Labour Court case held before Justice Vukeya in relation to Solidarity on behalf of members and Department of Education, SGB Laerskool Wierda Park as Respondents. She was not familiar with the court case. The case dealt with the same grievance on Page 92 of Bundle A. The outcome of the grievance on Page 72 of Bundle A dated 07 November 2025 post no TS54ED1006, was that the process must be redone.
She could see on Pages 13 and 19 of Bundle A that both applicants applied for the same post. If there is a grievance and the outcome is to redo the process that will be reason as the outcome of the grievance. When an outcome is to redo the process, recruitment will support the SGB panel as the scribe, as they comply with the decision of the labour relations. Panels will be appointed at schools for that recruitment process. They train the SGB members on recruitment processes but not all of them attend. They also provide training on documents requirements.
After this advert, they had generic GDE2R forms not specific as in the case of 2024, as the old GDE2R forms do not have some information. The one for July 2025 has different instructions that GDE2R forms to be used must have blocks. Other grievances have been resolved and it is only this one remaining. There were more grievances in the past in the same district and since those grievances the GDE2R form is now used. There are currently no grievances relating to GDE2R forms.
Since May 2025, the circulars state the instructions which are different to ones in current matter. However, she could note that the GDE2R form used by the Applicant, the size of notes in the instructions, printing and bullets points, no cv attached, no blocks in the form, only font sizes different on personal particulars, contact details, languages, no 6 and no 7 information is also the same. On Page 15 of Bundle A, lines have been added with additional numbering. On Page 16, no 8 skills information has been typed in. On Page 21, no.1 and 2 blocks have been provided, whereas Page 16 has no blocks as the table has been taken out and typed in the paragraph. Heading no.9 is the same as (a) and (b). No 10 is also the same. Page 10 references heading no.11, declaration and signature with date and at bottom are the same but there is July instructions with Page 4, which is an error with numbering. The reference column on the Applicant’s form starts with no.11 therefore the form in its totality is not a correct document.
She did not agree that the two forms have only structural differences as the numbering is also different. The last page of the form cannot be Page 4. The content of the form has been added with additional blocks. It was not a correct form enclosed to be used by applicants, as the pages are not matching and this renders the application incomplete. The Applicant used pages in the old form and pages in the anew form and such there are structural differences, although the numbering of the headings are correct. The reason the application was disqualified was that it is an incomplete form as the issue is not normally the page numbers but that it is not the correct form as instructed in the vacancy instructions.
She could not comment on whether the application process for the Applicant must be redone as she did not deal with his grievance. The reason for the disqualification is correct based on the notes in the vacancy circular. She also has no comment whether it will be unreasonable not to redo the process to give the Applicant same opportunity as others.
The Applicant closed her case.

Respondent’s Evidence
Joseph Thabiso Mphosi testified under oath as follows:

He is the Assistant Director: HRP. He deals with vacancy posts adverts, transfers, redeployment and all recruitment and selection process as well as monitoring.
He was responsible for Circular Vacancy 05 of 2024 and they are custodian of recruitment process. Before the closing date, they already start with the process of sifting the applications to ensure all the applications are on GDE2R forms, sorting them out as each district in HRP must do their advertised post. In sifting, they check the applications if they meet the criteria and those not meeting criteria are disqualified, in terms of the vacancy circular guide.
The guideline is on Page 36 of Bundle A at points 8 and 9 for sifting and shortlisting. They give 3 days after closing date for posted applications. They checked a minimum of 3 years experience for HOD post. Those applications disqualified remain in the district. Those qualified are sent to schools for shortlisting and interviews with a list of those disqualified but not their forms.
He remembered the Applicant’s application. He read through the 4.3.1 Page 33 of Bundle A. the Applicant used the incorrect GDE2R form and therefore his application was sifted out and disqualified for shortlisting. Page 19 of Bundle A is the enclosed form in the advert but Page 13 of Bundle A is not the same form. The application requirement indicate- use only the enclosed form. The form on Page 19 of Bundle A has blocks for the post number whereas the Applicant’s form has no blocks. The two forms may look alike but they are not the same.
Page 23 of Bunde A is the master list printed from the database capturing the applicants disqualified. Five of the applicants were disqualified for the post. The Applicant is on the disqualified list with reason of disqualification as correct form. The Applicant did not use the correct application form and the three others were also eliminated for using the incorrect form.
Page 24 of Bundle A is the master list printed from database of application forms who met the criteria when they did the sifting. The 2nd Respondent is in row 12 on the list with no reasons for disqualification. The applicants on the list followed the vacancy instructions to use the correct GDE2R form. The list went to the school for shortlisting and interviews.
Pages 31 and 32 of Bundle A is the legislative framework, which is the ELRC Collective Agreement of 2021, Chapter B. The 1st Respondent is fair, consistent and transparent across all the applicants. The policy guide is agreed upon by union and the employer. They also use PAM in the recruitment process. Unions are expected to train their members when applying as they represent them in chambers or Council.
He knew Ms Sylvia Steytler from the Directorate Recruitment and Selection. It is correct that each vacancy comes with different requirements and when there are gaps in the recruitment process, the employer and unions have to discuss how to close those gaps. When those changes in policies are made, head office communicates to them and also offers them training to capacitate them. They also give them a hard copy of the new policy.
When there is a vacancy, the circuit will draft it and bring it to them to verify and make it a final vacancy advert and then issue it with instructions on emails and to the schools. It was for the first time he came to know about the concern of the GDE2R form recorded in the minutes of the Task Team Meeting of 13 May 2025 on Pages 73 to 76 of Bundle A. No communication was sent to them about the warning issued regarding the GDE2R from. The minutes cannot be regarded as an official document because they are not signed. It just remains as a draft with no signatures of the chairperson and the secretary. Elerian Jeanette Sarpong testified under oath as follows:
She is the Principal at Via Nova School and she was requested by the SGB of Unica School to be part of the panel in the interviews for the HOD post due to her expertise. The Acting Principal at Unica School at that time was Mr Johan Pienaar.
They received the applications package which was sealed and before opening it, they set up some criteria, compared the list given of the candidates and checked if all applications were captured on the list. They looked at the requirements of the school when setting up the criteria and shortlisted a number of candidates based on the criteria set up.
The Applicant’s application was not part of those in the package and he was not shortlisted as he was not sifted for shortlisting process, meaning he did not qualify. They did not focus on the disqualified applications as those are just captured on the list by the scribe who recorded them as disqualified candidates. They were about 4 or 5 disqualified candidates.
The reason for the Applicant’s disqualification is recorded on the list as correct GD2R form. The scribe captured number of application received, how many disqualified and how many qualified. The panel looked at applications for those who qualified. The vacancy post is advertised in accordance with the legislative framework captured on Page 32 of Bundle A bullet point 3.1.

The 1st Respondent closed its case.

2nd Respondent’s evidence

The 2nd Respondent closed his case without calling any witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENTS

Section 186(2) (a) of the LRA defines an unfair labour practice as any unfair act or omission that arises between an employer and an employee involving 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.
For an employee to succeed in a dispute of promotion, such employee must demonstrate that the employer had exercised its discretion capriciously, for unsubstantial reasons, inconsistent, based upon any wrong principle, or biased manner or failed to comply with applicable procedural requirements relating to promotion. The procedure must have been fair; there must have been no discrimination, and the decision must not have been grossly unreasonable. The basis of the Applicant’s dispute is the challenge of the 1st Respondent’s decision on procedural defects.
In Noonan v Safety & Security Bargaining Council and Others [2012] 33 ILJ (LAC), it was held that there is no 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 of competing 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.
In the present matter, it is common cause that both the Applicant and the Third Respondent applied for a post as advertised in the Vacancy Circular No. 05 of 2024 issued on 29 July 20024 of a Departmental Head: DCAPS at Unica School.
It is further common cause that the Applicant’s application did not pass through the sifting process and the 2nd Respondent’s application was sifted, shortlisted and he was appointed in the post following the interview process effective 01 May 2025.
The Applicant did not contest the suitability of the 2nd Respondent to be appointed in the position but he argued that he also met all the requirements for the post since he has 8 years’ experience in the field of DCAPS and SID and relevant qualifications and an expert in the LSEN field. The 2nd Respondent contended that he was found to be the best qualified candidate following the interviews and the 1st Respondent followed its recruitment processes in appointing him to the post.
The 1st Respondent submitted that the Applicant used the incorrect GDE2R application form to apply for the post and such form was not the enclosed form as directed in the in the vacancy circular instructions. The crux of the matter is whether or not it was unreasonable for the 1st Respondent to disqualify the Applicant’s application due to the incorrect form.
According to the Applicant’s testimony he downloaded the GDE2R form that he used to complete his application from Google. He therefore conceded that he did not use the enclosed form that form part of the vacancy circular instructions. According to his testimony it became clear that the application form used by the Applicant is not the same as the one used by the 2nd Respondent in some respect. He testified that he added additional blocks to put more information regarding the information that was required in the form like qualifications, experience and others to make his application more successful as the form did not state that more spaces cannot be added on the form.
This form that the Applicant used does not have blocks on the post number whereas the one used by the 2nd Respondent has blocks to insert the post number and there are certain words and numbers already inserted in the post number blocks. It was the Applicant’s contention that the headings and the numbering in the form remained the same and therefore the form should have been accepted by the 1st Respondent. The Applicant’s reason to use that form was that he thought it was the correct form and he also asked his colleagues if that was the correct form before submitting his application.
The Applicant further testified that he had used the same GDE2R form to apply for positions at other districts and he was not disqualified but invited for interviews. This piece of evidence was not disputed by the Respondents.
It is also common cause that when the Applicant realized that he was not invited for interviews he lodged a grievance on 18 November 2024, which the 1st Respondent conceded it was received but was not attended to in terms of handling it internally by the Grievance Committee as required by ELRC Collective Agreement 01 of 2021.
The Applicant called two witnesses to testify on his behalf; Ms Wilma Henn and Ms Sylvia Steytler. Ms Henn testified about the task team meeting minutes with decision ratified at the Chamber meetings and the binding decision taken was that GDE2R form must be accepted by all districts and a warning has been issued to districts not complying, and that this concern was raised during that meeting because Tshwane South District office kept on rejecting older versions of GDE2R forms. Ms Henn further testified that there were no material differences in the two GDE2R forms for the Applicant and the 2nd Respondent except structural differences not the content.
Reliance on the acceptance of the old GDEE2R form was on the Labour Court judgment issued on 06 November 2024, in which the court interdicted the interviews and appointments by the Respondents, for the position of Principal at Wierda Laerskool for post no TS54ED1006 until the grievances of the Applicants have been considered and fully resolved before 12 November 2024. It is clear that this is the grievance that the 1st Respondent resolved on 07 November 2024, as ordered by the Court that the Applicants were unfairly treated as the GDE2R form contained all the required information and the post number was correctly capture on the GDE23R form that was signed on 31 July 2024. The 1st Respondent further found that the grievance was substantiated and the SGB was ordered to redo the process must be as all the relevant information was contained in the form.
Ms Steytler testified that there were no material differences in the forms submitted by the Applicant and 2nd Respondent. However, the Applicant did not follow the instructions in the vacancy as he did not use the enclosed form, and therefore it was reasonable for the 1st Respondent to disqualify him for that reason. She also denied any knowledge of the Chamber decision regarding GDE2R form nor the warning to districts to accept older versions of GDE2R forms, and that she was not aware of the decisions made against the Tshwane South District by the District Grievance Committee outcomes that certain processes must be redone for old GDE2R forms.
The 1st Respondent led the testimony of Mr Thabiso Maphosa, whose testimony also confirmed that the Applicant was disqualified during the sifting process in that he used the incorrect GDE2R form. His testimony was also that the application form used by the Applicant is not the same as the one used by the 2nd Respondent, and further that the vacancy circular provides information to note when applying and NB: GDE cannot be held liable or responsible for incomplete/incorrect applications and /or which are sent to the wrong address and/or reach their destination after the closing date.
Ms Sarpong who was also called as the 1st Respondent’s witness and testified that she was part of the interview panel for the relevant post and they did not interview the Applicant as indicated on the list for disqualified applications, as the Applicant used the incorrect GDE2R form. She also confirmed that one of the grievances lodged for old GDE2R form was for her school Via Nova, and the outcome was that the process must be redone; the post was readvertised but not yet filled.
Section F, ELRC Guidelines on Promotion Disputes in the Collective Agreement No.3 of 2016 outlines under Section F (36) that: “the conduct of the employer may be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. As soon as the promotion has been made by the employer, the employer becomes responsible for any unfair conduct of the school governing body committed during the process leading up to the promotion.”
In this matter, it was the Applicant’s case that he was treated unfairly during the sifting process as his application was disqualified, and therefore he was not offered a fair opportunity to be shortlisted and interviewed and finally compete for the post. The key issues to be determined in this award are whether the Applicant ought to have been sifted for shortlisting process, and whether by not sifting the Applicant, he was deprived of a fair opportunity to be shortlisted and compete for the post.
Section H (53), ELRC Guidelines on Promotion Disputes in the Collective Agreement No.3 of 2016 concerning procedural fairness states that: “where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for a post.”
It not in dispute that the Applicant submitted his grievance as early as November 2024 before the 2nd Respondent was appointed. The 1st Respondent has conceded that the Applicant’s grievance was received by one of the officials in the district, and submitted that it was an administrative error not to deal with it in terms of the ELRC Collective Agreement 01 of 2021.
Clause 17 of ELRC Collective Agreement 01 of 2021 regulates grievances and disputes in recruitment and placement for educators, and specifically provides that: “the employer must adhere to all prescripts and follow a fair selection procedure and ensure that all applicants and candidates are afforded a reasonable opportunity to promote the candidates. Failing to do so may result in grievances. It further provides that a grievance may only be lodged in respect of procedural unfairness during the selection process.”
The 1st Respondent has not provided any justifiable reasons why the District Grievance Committee (DGC) did not entertain the Applicant’s grievance, and has not contended that the grievance was not in compliance with the provisions of Clause 17.5. of the Collective Agreement 01 of 2021. This conduct by the 1st Respondent was unfair on procedural grounds and failed to allow the Applicant the opportunity to compete for the post, as the DGC was not given an opportunity to determine and assess the grievance. It is my considered view that this conduct by the 1st Respondent severely prejudiced the Applicant.
Concerning the substantive grounds as to whether the applicant should have been promoted, it is trite that when making an appointment, both the qualifications and experience as recorded in the application form and/or CV submitted by candidates, and together with performance during interviews, must be taken into account.
Clause 7 of Collective Agreement 1 of 2021 provides that: “the sifting process is done to eliminate applications of those candidates who do not comply with minimum requirements for the post as stated in the circular vacancy for school-based educators, learning support educators and education therapists. Clause 8 provides that applications which do not meet certain requirements will be disqualified including, correct application form as included in the vacancy (revised GDE2R and the form must have 11 headings excluding the declaration), original signature, signed GDE2R, correct post number with 10 characters, minimum years of experience and late submission.”
The Applicant presented documentary evidence of how the 1st Respondent has dealt with other Applicants who lodged grievances relating to GDE2R form, including the matter at the Labour Court brought by Solidarity on behalf of its members on the same issue. It is clear that the decision taken by the 1st Respondent on those grievances was to redo the process. In this case the Labour Court ordered that the 1st Respondent not to proceed with any interviews or appointment for the Principal position at Wierdapark Laerskool until the grievances of the Solidarity members have been resolved through the internal processes and fully resolved, and give the outcome on whether or not the applicants members of Solidarity shall be considered and of so, whether they will be shortlisted.
The 1st Respondent have not challenged that the matter at the Labour Court dealt with Applicants who used the incorrect GDE2R forms and that following the Court order the grievance was dealt with and found to have substance and subsequently ordered the SGB to redo the process. The 1st respondent’s witness tried to distance the 1st Respondent to the outcome as portrayed in the letter written by Mr Nkadimeng on 07 November 2024 in dealing with that grievance as well as the feedback given by Ms Steytler to Ms Rehbock on 30 May 2024 on the status of those grievance. But I found his version more defensive and has not been substantiated by any facts, as the outcome in the letter by Mr Nkadimeng is the same outcome in Ms Steytler’s email communication.
Mr Maphosa denied that the feedback status of the email communication by Ms Steytler, and was skeptical to disclose what was the outcome as he considered the information confidential. He denied that the processes were redone and that the applicants used different forms not even from the vacancy, and Fourie’s grievance was dismissed at district level and Head Office level100. The outcome was also that the applicants were unfairly treated for the GDE2R form used contained all the required information and the post number was correctly captured, and therefore the grievance is substantiated. The SGB was ordered to redo the process within the next 21 working days.
The 1st Respondent’s second witness, Ms Sarpong confirmed that the fourth grievance listed in the feedback email communication from Ms Steytler to Ms Rehbock of SAOU dated 30 May 2025 is not correct reflection of events because it a matter at her school Via Nova, in that Ms Davel also completed an old GDE2R form application for the Deputy Principal post; but that they were not instructed to redo it, as it was not captured. The position was readvertised, shortlisting and interviews were held and they were still awaiting the outcome. The 1st Respondent’s evidence about the redone process in this regard is also contradictory to Ms Steytler’s evidence. However, from the evidence presented by the two witnesses above points to the fact the conclusion that the outcomes of two grievances on the use of incorrect GDE2R was to redo the processes, positions were re-advertised and in Wierda Park, the Principal was already appointed, the other two were pending appointments including Via Nova.
The 1st Respondent has also challenged the unsigned minutes of the Task team and Chambers that they are not valid as they are not signed by the secretary and the chairperson. It is not a legislative requirement that explicitly require minutes to be signed. It is trite that unsigned minutes cannot generally be accepted as they are not considered official, authentic legally binding record of the meeting. Minutes must be approved by the relevant body or authority and must be signed by the chairperson or secretary of both if applicable, and dated the date of approval. Unsigned minutes are problematic as they can leave a room for confusion and disputes due to lack of clear confirmation of approvals. If the minutes are properly signed they are regarded as evidence of the proceedings of the meeting, unless the contrary is proved.
In this matter the minutes were not signed, and the chairperson or secretaries have not been called as witnesses to confirm the authenticity and or the correctness of what is recorded and more specially that it was alleged that the minutes were ratified in the chamber meetings.
I therefore agree with the 1st Respondent’s version that the minutes are not valid in the unsigned form as presented by the Applicant and can therefore not be accepted as reliable evidence.
The Applicant’s undisputed version was also that he met all the requirements in relation to relevant qualifications and experience to be shortlisted and this evidence has not been disputed by the Respondents. I cannot pronounce on whether he would have succeeded in the interviews if he was shortlisted and interviewed. What I can pronounce on is whether it would have been reasonable for the 1st Respondent to afford the Applicant an opportunity to be shortlisted, and not whether he should have been promoted or not.
The Applicant also led unchallenged evidence that he has been invited to interviews in other districts using the same form. As correctly argued by the applicant the 1st Respondent is therefore causing confusion to its employees on dealing with the GDE2R application forms due to its inconsistent application. Ms Steytler also corroborated the Applicant’s version that it was not prohibited that the applicants can add extra spaces to give as much information in the application to make themselves more competitive. But I found her evidence of that of Mr Maphosa very defensive and biased in some respects to protect the interests of their employer, the 1st Respondent.
I however, find that the Applicant has been able to discharge his onus of proof that the 1st Respondent was unfair to the Applicant and was inconsistent in dealing with applications completed on incorrect GDE2R form, and evidence has shown that the 1st Respondent has redone some the processes where grievances were lodged, found the grievance were substantiated as the forms contained all the required information, post number correctly captured on the GDE2R form and signed. I found that the Applicant was able to prove that his application falls within the same category of those grievances which were redone. His application contained all the required information, in the 11 headings correctly captured the post number and signed. While the Applicant’s grievance was not even entertained by the 1st Respondent until the appointment was made in May 2025, it is apparent that in those other compared instances, the grievances were all finalized prior to appointment. On the basis of my findings above, I consequently find that the 1st Respondent has committed unfair labour practice towards the Applicant as it was unreasonable and inconsistent to disqualify his application due to the fact that he used the incorrect GDE2R form. No justifiable reasons were given by the 1st Respondent for its unfair actions.
I take congisance that the 2nd Respondent is not to be blamed for the 1st Respondent unfair actions, and cannot be prejudiced by any decision that has to be made in this matter; more especially because there was no evidence to challenge that he was not the best candidate to be appointed in the post.
The Applicant prayed that I order the 1st Respondent to set aside the 2nd Respondent’s appointment and redo the process. It is my considered view that in the interests of justice and fairness, it will be fair to order the 1st Respondent to compensate the Applicant under the circumstances, taking into account that the 2nd Respondent has been appointed since May 2025, the stability of the school must be maintained and the best interests of the learners must also be taken into account.
In determining the just and equitable amount of compensation under the circumstances, I have taken into account the provisions of Clause ELRC Guidelines on Promotion Disputes in the Collective Agreement No.3 of 2016. Clause 71 of the Collective Agreement provides that “where an arbitrator decides to award compensation, and the applicant has not demonstrated that he was the best of all candidates, then compensation is solely aimed at compensating the employee for non-patrimonial loss. Where the loss in an unfair labour practice dispute is of non-patrimonial nature, compensation in the form of solatium (meaning solace money to salve injured feelings and sentimental loss) for the loss of a right, or put it differently, to compensate for the injuria of being treated unfairly”.
Clause 76 of the same collective agreement above gives guidance on the award of compensation arbitrators may award. Under the circumstances, I will award the Applicant compensation in the amount of R20 000.00.