IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN RUSTENBURG

                        Case No: ELRC1288-24/25NW

In the matter between

Batseba Selebaleng Moatlhodi Applicant

and

Department of Education of North West First Respondent

Samuel Koop Mosine Second Respondent

ARBITRATOR: Mandlenkosi Mini

HEARD: 04 April 2025 and 26 May 2025

DATE OF AWARD: 09 June 2025

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for Arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (As Amended 25 July 2023). The arbitration was held on 04 April 2025 and 26 May 2025 virtually and at the offices of the Department of Education – North West in Rustenburg.
2. The Applicant, Ms Batseba Moatlhodi, was present and represented herself. The First Respondent, Department of Education – North West, was represented by Ms. Boitumelo Phuswane from the Labour Relations Department.
3. The Second Respondent, Mr. Samuel Kopo Mosine, was present and participated in the process, as far as he was concerned, he did not lead any evidence but testified as a witness of the First Respondent.
4. On the 26 May 2025 the parties requested that the Closing Arguments be submitted in writing. It was agreed that the parties would submit the written Closing Arguments simultaneously on 02 June 2025 before close of business. The Closing Arguments for both parties were received timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

5. This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether the Respondent committed an Unfair Labour Practice, in relation to promotion by not advertising the post of the principal at Kloofwaters Primary School and if so grant the necessary relief.

BACKGROUND TO THE DISPUTE

6. The Applicant, Batseba Moatlhodi, is employed by the Respondent as an Educator at the Kloofwaters Primary School. The Applicant did not apply for the promotion post of Principal at the Kloofwaters Primary School, which was advertised on circular 20 of 2024. The Applicant alleged that the principal post for Kloofwaters Primary School was not advertised, therefore she could not apply.
7. The Applicant seeks that the Second Respondent’s appointment be set aside and the whole process be re-done, which includes the re-advertisement of the post.

SURVEY OF EVIDENCE AND ARGUMENTS
The Applicant’s case

8. The Applicant testified that she did not apply when the post for principal, as the First Respondent did not advertise the post. She stated that she was more qualified to fill the post, however she could not apply for the post due to the failure of the Respondent to advertise. She relied on a document that was dated the 18 September 2024, with a subject matter erratum 2 to Circular 20 of 2024. It was her evidence that Kloofwaters Primary School was not listed on the schools that appeared on that document. The Applicant stated that she did not check with her colleagues at Kloofwaters Primary School, whether the vacancies were advertised or not, and whether the acting principal at the time had shared the post or not.
9. The Applicant contended that the post was not in the public domain, the post was not transparently and fairly done. She conceded under cross examination that she was speculating that the advert was not in the public domain. She also stated that she was not at the premises of the school for about a year, and also conceded that the posts are usually at the school and WhatsApp groups. She stated that around the 5 September 2024, she was already suspended, therefore she was not at the school.

The Respondent’s case

10. The Respondent called three witnesses in support of its case. It was the Respondent’s case that the post was advertised on circular 20 of 2024. The first witness of the Respondent testified that she was an educator that applied for the principal post that was advertised for Kloofwaters Primary School. The witness stated that she was not employed at the school in question but was employed at Blakpan Primary School, which was under Litchenburg circuit and the circular was posted on the WhatsApp group of the school as well as the SADTU WhatsApp group.
11. The second witness of the First Respondent testified that she was employed at Kloofwaters Primary School. She was in the employ of Kloofwaters Primary School at the time of the principal post being advertised and stated that it was shared on the school WhatsApp group that the Applicant was not part of, and further stated that the post was printed by the Second Respondent. The Second Respondent testified that he had received the vacancies and shared them with the staff members of the school.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

12. Section 186 (2) (a) of the LRA states: “Unfair labour practice means an 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.”
13. The evidence that was led clearly demonstrated that the Applicant relied on a wrong document for her dispute, as the document that she referred to from page 2 to 10 of her bundle, contained an erratum to circular 20 of 2024, therefore it was not the original circular. The Applicant was supposed to revert or refer back to the original circular in order for her to clearly ascertain whether Kloofwaters Primary was listed or not in circular 20 of 2024, she relied on an erratum for this dispute. The document that the Applicant referred to in page 6, under the subject matter clearly stipulates that “it must be noted that the following schools were erroneously captured”, therefore there was no need for Kloofwater Primary School to be listed on the document dated the 18 September 2024.
14. The Applicant had the onus to prove on a balance probabilities that the First Respondent had committed an unfair labour practice. The Applicant conceded that she did not know what “erratum” meant when she received the information about the post being filled. The Applicant was unable to prove what she had alleged that the First Respondent failed to advertise, she alleged that the post was not in the public domain, however the first, second and third witness of the First Respondent confirmed that the post was advertised. The evidence of the Applicant and her argument seems to suggest that the First Respondent ought to have made special arrangements for the Applicant in order for her to be notified of the advertised post. Ms Mokone confirmed under cross examination that she saw the advertised post at Blakpan Primary School, which is in a different circuit as the one that Kloofwaters Primary School falls under, therefore it cannot be correct to say that the post was not advertised, transparently, fairly and in the public domain.
15. Evidence that was led by the First Respondent was that interviews were held for the principal position, this was confirmed by the witnesses of the Respondent therefore the recruitment process was followed and a suitable candidate was appointed. The argument of the Applicant that the Second Respondent was given the position on a silver platter cannot be accepted, as it is not substantiated by any evidence.
16. In Monyakeni v SSSBC and others (JA 64/13) [2015] ZALAC 17 (handed down on 19 May 2015) the LAC stated that “there are two components to a complaint regarding a failure to promote an Employee as an unfair labour practice. The one relates to the procedure followed by the Employer. The other relates to the substantive merits, and it concerns the suitability of the candidate for promotion to the post in question.”
17. The Applicant’s argument was that the First Respondent’s unfair labour practice conduct was procedurally unfair, as she could not apply for the vacancy. The Applicant did not see the advert of the principal post that was advertised, due to her not being on the WhatsApp group of the school and the fact that she was suspended. The second witness of the first Respondent confirmed that the post was shared on the WhatsApp group that the Applicant is not part of. It cannot be correct that the recruitment process of the First Respondent was not fair and transparent, simply due to the Applicant not having seen the post and her misunderstanding the documents that she received relating to the management plan.
18. Having considered the above in totality, it is my finding on a balance of probabilities that the Respondent did not commit an unfair labour practice as alleged that the principal post at Kloofwaters Primary School was not advertised.
19. I therefore make the following award:

AWARD

20. The Applicant, Batseba Selebaleng Moathlodi, failed to prove that the First Respondent, Department of Education – North West, committed an unfair labour practice relating to promotion in terms of Section 186 (2) (a) of the LRA.
21. The Applicant’s claim of unfair labour practice is hereby dismissed.

Panellist: Mandlenkosi Mini