Panellist: Khuduga Tlale
Case Reference No.: ELRC1271-25/26EC
Date of award: 14 August 2026

In the matter between:

Julia Wisani Applicant

And

Department of Education – Eastern Cape 1st Respondent

Thembisa Phande 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Julia Wisani (“applicant”) and Department of Education – Eastern Cape (“1st respondent”) and Thembisa Phande (“2nd respondent”) was held on 28 July 2026 at the 1st respondent’s offices in Maletswai. The applicant appeared in person, and Ms. N Holby, NAPTOSA full-time shop steward, represented her. Mr. G Sigojo, Circuit Manager, represented the 1st respondent. The 2nd respondent appeared in person, and Ms. N Nkuse, SADTU full-time shop steward, represented her.
2. This proceeding was conducted in English, and was digitally, and manually recorded. The parties agreed to submit the written heads of argument on Wednesday, 05 August 2026.

Issue to be decided

3. The issue in dispute is whether an unfair labour practice was committed against the applicant when she was not shortlisted for the position of a Head of Department (PL2) at Ethembeni Senior Secondary School at Joe Gqabi District. Background to the dispute
4. The 1st respondent advertised the position of a Head of Department (PL2): Maths and Physical Science/Agricultural Science/Life Science at Ethembeni Senior Secondary School with post reference number, volume 2 of 2025, post number 60. The applicant and 2nd respondent applied for the said position. The applicant was an educator (PL1) with 36 years of teaching experience when applying for this position. The 2nd respondent was an educator (PL1) with 5 years of teaching experience when applying for this position.
5. The applicant was not shortlisted, but the 2nd respondent was shortlisted, interviewed, and promoted. The applicant does not have Mathematics, and the 2nd respondent had Mathematics and Physical Science. The applicant was teaching Life Science for 18 years. The 2nd respondent was joined as a party to the proceedings.
6. The applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“ELRC”) alleging that her non-shortlisting was both procedurally, and substantively unfair. She sought compensation or the selection process be re-done. The dispute was not resolved at conciliation, and it was referred for an arbitration. The parties submitted bundle of documents, and were marked bundle “A”, “C” and “R”. The parties narrowed the issues as per “B”.

Summary of Evidence

THE APPLICANT’S EVIDENCE

First Witness: Ms. Julia Wisani

7. The witness testified under oath that she was the applicant in this matter and that documents “A36–A57” comprised her application for the disputed position. She testified that the shortlisting criterion was Mathematics and Physical Science, which differed from the advertisement. According to her, the shortlisting panel had no authority to alter the post profile. She testified that she had Life Science and was therefore denied an opportunity to compete fairly with the other candidates. She referred to document “A12”, being the shortlisting minutes, and testified that only two candidates were shortlisted, which she alleged was contrary to Collective Agreement 1 of 2024 (“CA”). She further testified that the 1st respondent was required, in terms of clause 6.8 of the CA, to shortlist a maximum of five (5) candidates.
8. Under cross-examination by the 1st respondent, she testified that the 1st respondent was required to shortlist a minimum of three (3) candidates in terms of clause 6.9 of the CA. She conceded that the determination had been approved by the 1st respondent or its delegated authority. She testified that there was no common denominator in document “R24.1”. She referred to document “R17”, being the school profile, which reflected Mathematics and Physical Science, Mathematics and Life Science, or Mathematics and Agricultural Science. She testified that the advertisement differed from the school profile. She further testified that she had majored in Afrikaans and Life Science and that, based on the school profile, she was not supposed to have been shortlisted.
9. Under cross-examination by the 2nd respondent, she testified that she met the post requirements because she had Life Science. She referred to document “R60”, being her academic record, and testified that it reflected Life Science but no Mathematics.
10. In response to clarity questions, she testified that the position required Mathematics and Physical Science/Agricultural Science/Life Science. She testified that Agricultural Science and Life Science were stand-alone subjects and were not intended to be read together with Mathematics. She further testified that the advertisement did not state Mathematics or Physical Science or Agricultural Science or Life Science. According to her, she suffered prejudice because she qualified to be shortlisted. Second Witness: Mr. Makhosandile Gideon Ngxaki
11. The witness testified under oath that he was the observer during the shortlisting process. He testified that he was not familiar with the shortlisting criteria contained in document “A11”. He stated that the subjects reflected in documents “A11” and “R24.1” were not the same. According to him, the advertisement referred to Mathematics and Physical Science/Agricultural Science/Life Science, whereas the shortlisting criterion was limited to Mathematics and Physical Science. He testified that three (3) candidates who did not have Mathematics were not shortlisted because the panel sought candidates with Mathematics together with the other subjects. He further testified that the panel ought to have shortlisted three (3) candidates instead of two (2).
12. Under cross-examination by the 1st respondent, he testified that he observed both the shortlisting and interview processes and that he was the SADTU Branch Secretary. He referred to document “R123”, being his declaration form, and confirmed that he had declared the shortlisting process to be fair. He further testified that he did not understand the meaning of the forward slash (/) used in the advertisement.
13. The 2nd respondent’s representative indicated that she had no questions for the witness. She was cautioned regarding her decision and the implications thereof but elected not to cross-examine the witness. THE 1ST RESPONDENT’S EVIDENCE First Witness: Ms. Patience Thobeka Mdashe
14. The witness testified under oath that she is employed by the 1st respondent as an Assistant Director: Human Resource Administration. She testified that she was familiar with document “R24.1”, being the advertisement. According to her, the advertisement required Mathematics and Physical Science/Agricultural Science/Life Science, and the forward slash (/) was intended to mean “or” because of limited advertising space. She referred to document “A11”, being the shortlisting criteria, which reflected Mathematics and Physical Science. She also referred to documents “A10” and “A12”, being the selection procedure and the shortlisting minutes, respectively. She testified that it was not incorrect for the panel to use Mathematics and Physical Science as the shortlisting criterion.
15. Under cross-examination by the applicant, she testified that document “R20”, being the school profile, was consistent with the advertisement. She referred to document “R25”, the master list, and testified that five (5) candidates had applied for the disputed position. She testified that the 2nd respondent possessed Mathematics and Physical Science and met the post requirements, whereas the applicant had Biology and Afrikaans and did not meet the post requirements.
16. She further testified that all the candidates reflected on the master list met the post requirements. She stated that the shortlisting criterion was intended to be in accordance with the advertisement. She referred to document “A11” and acknowledged that the first phase of the shortlisting criterion reflected only Mathematics and Physical Science and excluded Agricultural Science and Life Science. She testified that the criterion was determined by the shortlisting panel.
17. Under re-examination, she testified that Mathematics and Physical Science formed part of the advertised requirements and that the criterion was consistent with the advertisement.
18. In response to clarity questions, she testified that the first phase of the shortlisting criterion ought to have reflected the advertisement as published. She further testified that the shortlisting panel had no authority to restrict the criterion to Mathematics and Physical Science only. THE 2ND RESPONDENT’S EVIDENCE
19. The 2nd respondent’s representative indicated that no evidence would be led on behalf of the 2nd respondent. The representative was cautioned regarding that decision and the implications thereof but elected not to present any evidence.

Survey of Argument

THE APPLICANT’S ARGUMENT

20. The applicant’s representative submitted that the 1st respondent’s witness conceded that all the candidates met the minimum requirements and that there was no basis for excluding the applicant from consideration. It was submitted that the shortlisting panel omitted Agricultural Science and Life Science from the criteria, thereby fundamentally altering the advertised requirements. The representative argued that the panel had no authority to redefine or amend the essential requirements after the closing date for applications.
21. It was further submitted that the applicants were assessed against criteria that differed from those contained in the advertisement and that the 1st respondent failed to justify the exclusion of the applicant. The representative argued that the alleged approval to shortlist fewer than three (3) candidates was never produced and that the 1st respondent therefore acted in contravention of CA. It was submitted that the applicant met the advertised minimum requirements, that the 1st respondent committed an unfair labour practice relating to promotion, and that the appropriate remedy was for the shortlisting process to be conducted afresh.

THE 1ST RESPONDENT’S ARGUMENT

22. The 1st respondent’s representative submitted that the applicant did not meet the requirements of the post and therefore could not be shortlisted. It was argued that the applicant suffered no prejudice as a result of not being shortlisted. The representative further submitted that the panel agreed on the shortlisting criterion of Mathematics and Physical Science, that it did not deviate from the advertisement, and that the applicant was not prejudiced by the shortlisting process. THE 2nd RESPONDENT’S ARGUMENT
23. The 2nd respondent’s representative did not present written argument despite having been afforded the opportunity to do so.

Analysis of evidence and arguments

Introduction

24. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is 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 benefits to an employee.

25. The dispute before me relates to an alleged unfair conduct by the 1st respondent relating to promotion. In promotion disputes, the applicant bears the onus to prove that the 1st respondent conduct was unfair. On the other hand, the 1st respondent, is in the same token, obliged to defend challenges on the substantive, and procedural fairness, if it wishes to avoid a negative outcome.
26. In this matter, the applicant challenged the 1st respondent’s decision not to promote her on the basis that she was not shortlisted, and interviewed for the position that she had applied for. It was common cause that the applicant applied for the position that was advertised. The question is whether the 1st respondent’s conduct or decision not to shortlist, and promote her is one that falls within the definition of an unfair labour practice?
27. Section 138(7)(a) of the Act enjoins me to provide brief reasons for my findings.
28. It is clear from the testimony of the applicant that her complaint is three-fold. Firstly, she takes issue with the shortlisting criterion of the 1st respondent. Secondly, she alleged that the 1st respondent was required not to shortlist less than three (3) candidates. Thirdly, she alleged that she should have been considered, and shortlisted because she had Life Science. It is therefore important to analyse these issues separately.

Whether the panel altered the shortlisting criterion?

29. The applicant’s case is that the first phase of the shortlisting process excluded Agricultural Science and Life Science. The advertisement requires the candidates to have Mathematics and Physical Science/Agricultural Science/Life Science. It is the 1st respondent’s evidence that the shortlisting panel has the authority to decide the criterion after considering the school needs. It is further the 1st respondent evidence that the panel was not wrong when they only wanted candidates with Mathematics and Physical Science. It is further the 1st respondent’s evidence that they got authority to amend the post requirements, but approval for deviation from the advertisement was not provided to the proceedings.
30. The question that arises is whether the shortlisting panel had the authority to amend the post requirements during the shortlisting process. The 1st respondent failed to produce any approval authorizing a deviation from the advertised requirements. In Letsogo v Department of Economy and Enterprise Development (JR350/16) [2018] ZALCJHB 48, the Court held that a selection panel acts ultra vires when it changes the requirements contained in an advertisement without proper authority. Accordingly, I find that the shortlisting panel was not entitled to alter the advertised requirements by restricting the field to candidates who possessed Mathematics and Physical Science only. However, this procedural irregularity does not automatically render the process unfair. It remains necessary to determine whether the deviation prejudiced the applicant and whether she met the inherent requirements of the advertised post.

How many candidates were required to be shortlisted?

31. It is the applicant’s version that the 1st respondent was required to shortlist between 3-5 candidates, but they only shortlisted two (2) candidates. It is further the applicant’s version that the 1st respondent had no approval to shortlist less than three (3) candidates. It is the 1st respondent’s version that the approval was granted for the promotion of the 2nd respondent, therefore, the 1st respondent or his/her delegated authority approved the shortlisting of two (2) candidates.
32. The question that needs to be asked is how many minimum candidates the 1st respondent was required to shortlist? Sub-paragraph 6.8 of the CA states that the interview committee must shortlist a maximum of five (5) and if for valid reasons this maximum should be exceeded, it must not be more than seven (7). There were no other selection procedures referred by the applicant during the proceeding except this CA. It is clear that there were no minimum candidates required to be shortlisted based on the CA. The panel was required to shortlist maximum of five (5) candidates. The applicant failed to establish that the shortlisting panel was required to shortlist a minimum of three (3) candidates. Whether the applicant should be shortlisted?
33. It is the applicant’s evidence that the advertisement did not state Mathematics or Physical Science or Agricultural Science or Life Science. The disputed position was advertised as follows; Head of Department (PL2): Maths and Physical Science/Agricultural Science/Life Science. The applicant submitted that the advertisement did not require Mathematics together with either Agricultural Science or Life Science, and that Agricultural Science and Life Science constituted independent alternatives. The issue is therefore the proper interpretation of the advertised requirements, namely: Head of Department (PL2): Maths and Physical Science/Agricultural Science/Life Science. A forward slash (/) generally denotes alternatives. It is common cause that prior to the advertisement of this disputed position, the school profile was as follows’ Mathematics and Physical Science or Mathematics and Agricultural Science or Mathematics and Life Science.
34. However, the advertisement must be interpreted contextually and in light of the purpose of the post. Having regard to the wording as a whole, I am satisfied that Mathematics formed an essential component of the advertised post, while Physical Science, Agricultural Science or Life Science represented the accompanying specialization. It is common cause that the applicant did not possess Mathematics and relied solely on Life Science. Accordingly, even if the panel had applied the advertisement as published, the applicant would not have met the inherent requirements of the post and would not have been shortlisted. This explains why the procedural irregularity did not prejudice the applicant.
35. The applicant further complained that the 1st respondent failed to disclose the sifting report. However, she failed to demonstrate how the absence of the sifting report prejudiced her case. There was no evidence that her application was excluded during the sifting process or that the report contained information that would have affected the outcome. In the absence of evidence of prejudice, this complaint cannot succeed. Conclusion
36. Having considered the totality of the evidence, I find that although the shortlisting panel acted irregularly by limiting the shortlisting criteria without demonstrating proper authority to deviate from the advertisement, the applicant has failed to establish that this irregularity prejudiced her. On a proper interpretation of the advertisement, the applicant did not satisfy the inherent requirements of the post because she did not possess Mathematics. Consequently, she would not have been shortlisted even had the advertisement been applied strictly according to its terms. The decision not to shortlist the applicant was therefore substantively fair, and the applicant has failed to discharge the onus of proving an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the Act. Award
37. The applicant, Julia Wisani, has failed to prove that she was the victim of an unfair labour practice in terms of Section 186(2)(a) of the Act, relating to promotion, by the 1st respondent, the Department of Education – Eastern Cape.
38. The 2nd respondent, Thembisa Phande, did meet the inherent requirements of the advertised position.
39. The applicant’s application is dismissed.

Signature:

Commissioner: Khuduga Tlale
Sector: Education