CASE NUMBER: ELRC 564-24/25EC
PANELLIST: BONGANI MTATI
DATE: 12 JUNE 2025

IN THE ARBITRATION
Between:

NAPTOSA obo BONGIWE HOLBY APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
MOSAKU V 2ND RESPONDENT
DATE/S OF HEARING 7 & 8 APRIL 2025 AND 20 MAY 2025
DATE ARGUMENTS SUBMITTED: 30 MAY 2025

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at Maluti Education Centre offices in Matatiele on 7 April and 20 May 2024 at Kokstad SASSA offices at 09h00. Mr A. Mhlontlo from NAPTOSA represented the Applicant. Mr T Mashoai LN, an official represented First Respondent, (Department of Education Eastern Cape). Ms Bakumeni P and Mr L Maphela from SADTU alternatively represented Second Respondent, Mr V Mosaku.
   ISSUES TO BE DECIDED
2. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.
   BACKGROUND OF THE DISPUTE
3. This is a promotion dispute involving post volume 3/2024 in the Eastern Cape being the principal post for Tlopo Primary School.
4. Applicant was teaching St Magarrette Senior Secondary School as post level one educator and has taught since 1995 as post level one educator and Second Respondent being Mr V. Mosaku was the acting principal during his appointment as principal at Tlopo Primary School.
5. After the post was advertised, Applicant, Second Respondent and other candidates applied for the post.
6. The Second Respondent’s appointment was approved by the Department of Education on the 14 August 2024 to assume duties as principal of Tlopo Primary school.
7. The Applicant initiated her dispute by first lodging a grievance which was set down for hearing and her claim was not resolved.
8. Applicant alleged that she was not shortlisted despite meeting all the requirements of the post advertised and applicant had not complied with all the requirement of recruitment, therefore viewed should not have been shortlisted as candidate to contest principal promotion post.

SURVEY OF EVIDENCE AND ARRGUMENT
Employee’s case
Witness: Bongiwe Holby

9. She testified under oath that she was an educator of the Department of Education teaching at Magarrette Secondary School and challenging principal post at Tlopo Primary school.
10. She submitted that she has qualifications of matric, STD and BTech Management degree.
11. She submitted that she applied for a post at Tlopo Primary School as was advertised in the bulletin with subjects of Social Sciences, English Fal and management, which are her subjects she specialised with as she is teaching them at school.
12. She referred to the incumbent’s application form stating that it was not fully completed as required and referred to paragraphs 20.10,16, 17.4, so further referred to the bulletin requirements that the application form must be fully completed, which she viewed not fully completed. She further submitted that her application form was fully completed and complied with the requirements of the bulletin.
13. She submitted that the incumbent was not supposed to have been shortlisted as he failed to complete his form fully with no gaps as per the requirements of the bulletin, so panel considered subjects and management only, so did shortlisting incorrect as they failed to check completeness of the form for shortlisting.
14. She stated that the panel postponed counting of scores as was challenged by Ms Koka of SADTU and referred to the minutes of interviews where she read that the incumbent met minimum requirements and found suitable for the post and identified that minutes had no date and author of the minutes and further identified same minutes as hand written and typed in another page, which she viewed those minutes not the same.
15. She submitted that the incumbent was recommended on the 26 July 2024 and the interviews were on the 14 July 2024, so submitted that the panel erred the prescribed procedure in terms of the recruitment and selection policy. She submitted that according to the policy, the panel has to submit recommended candidates within three days, but panel failed to submit recommendations within three days as submitted their recommendation on the 27 July 2024 and interviews were held on the 14 July 2024.
16. She submitted that she felt panellists awarded similar scores as they were seated close to each other as the room for interviews was small and ultimately incumbent scored high marks than
    her, which she viewed panel being biased towards the incumbent, but stated that she did her best and supposed to have been herself to score high marks than the incumbent.
17. She submitted during cross examination that NAPTOSA was not invited during shortlisting as she heard from her union chairperson and was not part of the panel, but chairperson heard it during their meeting with the respondent, but was not aware that NAPTOSA was invited to the shortlisting as per the invitation letter she was referred to.
18. She further testified during cross examination that NAPTOSA was not represented in the interviews as their representative was chased away by the resource person due to the room being small where interviews were held.
19. She further stated that the resource person interfered with the drafting of question of the candidates to be interviewed as she heard from her chairperson as she was not there for question drafting.
20. She further stated during cross examination that she viewed incumbent’s performance not satisfactory based on her performance as she was not the panellist in the interviews. She further confirmed that scoring during the interviews is subjective as dependent to the panellist how she assessed the candidate to give scores.
21. She stated during cross examination that she did not know that the panel had nothing against her as they rated her number two in the interviews and confirmed that had the incumbent declined the post was to be the appointed candidate.
22. She further emphasised during re-examination that the panel was biased as scored incumbent high marks and contested by Ms Koka of SADTU and NAPTOSA was not properly invited for the shortlisting as invited on the day of the shortlisting.
    Witness 2: Inoch Ntloko
23. He testified that he was an educator who was a NAPTOSA official at provincial level of the Eastern Cape and involved in representing members applied for the posts of the respondent, as he was involved since 2008.
24. He submitted that NAPTOSA was not invited to the shortlisting and referred to the attendance register that no person represented NAPTOSA during shortlisting.
25. He submitted that for them to be invited to attend shortlisting on the day of shortlisting was irregular and contravened the policy to be notified within five days of shortlisting.
26. He submitted that they were not given sifting report as per the policy on recruitment to be reported about sifting before shortlisting.
27. He stated that according to the bulletin requirements, application form must be fully completed with no gaps, but the incumbent application form had gaps which were not filled in, so viewed that incumbent should not have been shortlisted.
28. He submitted that he was chased away by the resource person informing him that there was no space for him in the interview room as the room was small and unable to accommodate all of them during interviews, so NAPTOSA was not represented in the interviews. He disputed the minutes of the interviews that he left the interview room as he had to attend other interviews as he was the only one attended interviews for NAPTOSA.
29. He further referred to the minutes of the shortlisting, interviews and ratification as having similar hand writing, which he viewed as written by one person being the incumbent as his application form had similar hand writing with the shortlisting, interviews and ratification minutes.
30. He submitted during cross examination that he was absent in the interviews as was chased away and not an expert in writing, but could identify writings that are similar
31. He further admitted during cross examination that NAPTOSA was invited to the shortlisting as was attended by Ms Njobe on behalf of NAPTOSA.
32. He submitted during cross examination that he did not lodge a complaint for being chased away, although was aware of the remedy, but did not raise it as he was shocked and traumatised, so did not play his role to observe fairness in the process.
    Witness 3: Sweetness Njobe
33. She testified that she was an educator belonging to NAPTOSA union representing and observing for the members in their affairs like promotion, but was absolutely not involved in Tlopo PS principal promotion post.
34. She submitted that her name was not appearing in the attendance register, but appeared in the recommendation letter, so viewed as fraud as she was not in the shortlisting meeting.
35. She submitted during cross examination that if unions have been invited to the process and fail to attend, the process must proceed in their absence.
36. She stated during cross examination that she was at the district office for her personal business and could not recall whether she went to the hall where shortlisting took place, but was aware of the shortlisting process.

RESPONDENT’S CASE
Witness Qalello Leisa

37. He testified under oath that he was the member of the School Governing Body (SGB) of Tlopo Senior Primary School since 2016 up to date and formed part of the panel of principal post of Tlopo that was advertised in 2024.
38. He submitted that during shortlisting all panel members were present together with Sadtu represented by Ms Koka and NAPYOSA represented by Ms Njobe for the post in question.
39. He stated that there were about 15 schools attended their shortlisting process in the hall and unions were present moving around the hall to observe the shortlisting process of candidates including Tlopo SPS.
40. He submitted that Ms Njobe from NAPTOSA attended shortlisting up to its conclusion and further advised them on how to do shortlisting and appointment in general.
41. He stated that during interviews all panel members attended interviews together with NAPTOSA represented by Mr Ntloko who left before start of the first candidate to be interviewed indicating that he was attending other interviews as his union was not represented in those interviews and SADTU represented by Ms Koka who was present throughout the interviews.
42. He disputed that NAPTOSA representative was chased away in the interviews as he was busy observing in other interviews and further disputed that the resource person drafted questions for the panel and stated that the resource person was guiding them as they formulated questions for themselves
43. He submitted that they appointed the incumbent as candidate that scored high marks and being at post level 4 and met post requirements without being influenced by the resource person and disputed that the panel was biased towards the incumbent as alleged by the applicant, as applicant became number two to the incumbent and further viewed the scores of the applicant and incumbent close to each other.
44. He submitted that they concluded interviews and started consolidating scores where SADTU representative raised that applicant’s scores were not in accordance to her performance, which led the panel to adjourn their consolidation of scores until Ms Koka’s complaint was addressed and came back on the other day for ratification meeting where panel recommended the incumbent to the post of principal with applicant being number two to the incumbent, which he declared interviews as free and fair at Tlopo SPS.
45. He testified during cross examination that Ms Koka was an observer and not panellist, so did not know how Ms Koka determined that the applicant performed well than the incumbent and
    emphasised that panel scored according to their best performances based on assessing the
    candidates. He further stated that on their return to the ratification meeting as panel they were still firm and continued their work with high integrity.
46. He admitted during cross examination that they never given report of sifting by human resource to the unions as required by PAM document.
47. He disputed that minutes were not given to the applicant as all minutes taken by secretary of the panel and attendance registers were signed during meetings of shortlisting, interviews and ratification
48. He disputed that minutes of the meetings were invalid as not signed by secretary and chairperson, so regarding minutes as valid and being minutes of the panel for the post of principal at Tlopo PS.
49. He further disputed that chairperson and secretary of the panel were not elected during panel meeting, but at SGB meeting, which he stated that panel had their meeting to elect their secretary and chairperson.
50. He further disputed that the unions were invited to the shortlisting meeting not complying with the policy of giving notice of five days, as he viewed invitation as an error to the date of invitation and interviews were held on the 14 May 2024.
51. He further admitted that there were two sets of minutes for shortlisting, interviews and ratification as others were hand written and others were typed for the departmental template.
52. He further admitted that Ms Njobe was absent during the shortlisting as she did not sign the attendance register.
53. He further disputed that the incumbent’s application form was not fully completed as gaps were for others and incumbent had filled in his form in full with necessary information.
54. He further disputed that the panel did not like the applicant as they placed applicant number two, which he viewed had incumbent declined the post, their principal would have been the applicant.
55. He acknowledged writing errors by the secretary in taking minutes with no date and other errors, but disputed that invalidated the minutes.
56. He further stated during cross examination that the panel discussed questions for the candidates and clarified them to all panel members and understood them as were further interpreted to their language in order to fully understand questions, so all panel members participated in the interview process by formulating questions, asked questions to the candidates and scored marks for the candidates.
57. He further disputed that the interviewing room was small as they were all accommodated in it with enough space and performed their duties to appoint the principal.
58. He disputed that motivation was not done during recommendation of the incumbent, as was motivated in page 25 of the bundle.
59. He admitted to have submitted their recommendation to the circuit manager, but not sure if their submission of their recommendation was within three days as required. He further admitted that they did not comply with holding ratification meeting on the same day of the interviews being 14 May 2024 and ratification meeting held on the 26 July 2024.
60. He stated during re-examination that the panel performed well their duties at shortlisting, interviews and ratification with their outcome being incumbent recommended for principal post and applicant became number two to the incumbent.
    ANALYSIS OF EVIDENCE AND ARGUMENT
61. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
62. I have considered the departmental guidelines for sifting, shortlisting, interview procedures, post requirements, relevant collective agreement on promotion as well relevant case law.
63. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”. In this case unfair labour practice involves promotion.
64. I have to decide whether the Respondent acted fairly or not in not appointing the Applicant in the position of the principal at Tlopo Primary school.
65. I start by considering procedural fairness in the promotional employment process of the principal at Tlopo Primary school.
66. As this is a principal promotional post, in terms of the PAM regulations the role of the departmental officials as resource persons is to assist the school governing body, towards the
    appointment of qualifying school management by giving control to manage appointment processes. The resource person will be responsible to ensure that capacity building sessions is
    conducted with the interview committee to enhance its understanding of the selection and interview processes.
67. In this case SGB members together with interview panel were trained by the First Respondent to conduct the employment process of Tlopo Primary School as per the prescripts of the employment policies of the First Respondent as testified by witness Leisa
68. I find that procedure was almost complied with, except failure of the panel to report to unions about sifting process by human resource section, incompleteness of application forms of the incumbent as per paragraph 17.4 and incompleteness of the applicant’s application form in paragraph 20 under development and not yet established as compared by the applicant in her testimony, failure to submit panel recommendation within three days and failure to conduct ratification meeting immediately after interviews.
69. I reject evidence that Ms Njobe was not part of the shortlisting as she went to the venue for shortlisting and could not be sure whether entered the venue where shortlisting took place, which l view as bare denial as she signed the recommendation of shortlisted candidates and further testified by witness Leisa that indeed attended shortlisting as she further advised panel on proper conducting recruitment of principal fairly.
70. I further reject evidence that Mr Ntloko was chased away from the interview room due to absence of space, as l view improbable for him to be chased away being a senior provincial official of NAPTOSA and experienced representative since 2008 to not challenge such chasing away as he stated he was shocked and traumatised and admit evidence that he was busy during interviews as many schools were on promotional interviews requiring many union representative in all those interviews.
71. I further reject evidence that the panel was biased towards the incumbent as applicant’s evidence was disputed by witness Leisa stated that the panel acted fairly based on their own free and fair scoring with their different scores, which he viewed as best performance of the panellists.
72. So, l view all these procedural defects as not having serious effect to the applicant not to proceed with interviews and or being prejudiced to require compensation or setting aside of the approved principal of Tlopo Primary School by the first respondent.
73. In terms of the ELRC Guidelines: Promotion Arbitration Annexure A Collective Agreement of 2016 on how to approach procedural remedies in paragraph 55 states that as long the decision of the employer can be rationally justified, mistakes in the process of evaluation do not generally constitute unfairness justifying interference with the decision to appoint.
74. Considering substantive fairness, I find that the Second Respondent’s appointment was fair as he qualified to be appointed in the post of principal based on his qualifications, and a serving principal at post level four of the First Respondent and applicant was post level one educator with more experience at the department of education with scores below than scores of the incumbent as testified by Mr Leisa and corroborated by the applicant, although applicant contested scores as having subjectively performed well than the incumbent.
75. I reject evidence that the applicant performed well than the incumbent, as applicant was not a panellist, but an interviewee and panellists unanimously granted high scores to the incumbent based on incumbent’s performance during interviews and applicant being number two in the consolidation of scores, so l view the incumbent was recommended and approved based on his performance as the principal of Tlopo Primary School
76. Therefore, l find that there are no biased and insubstantial reasons based upon any detrimental wrong principle in employment process of the Second Respondent and further find that the Applicant has not proved that she was the best of all the candidate applied for the principal post at Tlopo Primary School.
77. .” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l view appointment of the incumbent was substantively fair as his application complied with all the requirements as testified by the witness Leisa of the Respondent and confirmed by the Applicant during her examination in chief that the incumbent was scored number one by the panel. So I conclude that the Applicant failed to convince and prove necessity that the remedy she sought to set aside the employment process to repeat it and or compensation as requested is not successful.
78. The Applicant bears the onus to prove that the Respondent committed unfair labour practice relating to promotion and furthermore that there was some form of unfair conduct on the part of the First Respondent during the promotion process and that such unfair conduct constituted an
    unfair labour practice and she is entitled to the relief of setting promotion decision aside or compensation she sought, which l view applicant failed to prove such.
79. Based on the evidence before me, I find that the Applicant failed to discharge the onus on a balance of probabilities placed on her to prove that she was the best candidate to set aside the employment process or being compensated for unfair conduct.
80. I find that the First Respondent committed no unfair labour practice to the Applicant based on the reasons highlighted above, except for the mentioned defects on recruitment process of Tlopo Primary School, which l view not to the detriment and prejudiced to the applicant to require compensation. In the result, the appointment of the Incumbent into the position of Principal at Tlopo Primary School is sustained and stands to be confirmed that the 2nd Respondent is the principal of Tlopo Primary School as approved by the 1st Respondent on the 14 August 2024 and signed assumption of duty to start his duties as principal of Tlopo Primary School.
    AWARD
81. I find that the First Respondent had not committed an unfair labour practice as intended in section 186(2) of the LRA.
82. Applicants claim is dismissed.
83. No order is made on costs.

Signature:

Commissioner: Bongani Mtati
Sector: Basic Education