Panellist/s: Seretse Masete
Case No.: ELRC 663-24/25MP
Date of Award: 31/05/2025

In the ARBITRATION between:

Mzamo Elmon Mahlalela

(Union / Applicant) And

Mpumalanga Provincial Department of Education

(Respondent)

Union/Applicant’s representative: Lindela Mohlala , an Attorney from Tarwa Attorneys
Union/Applicant’s address:
Telephone:
Cell:

1st and 2nd Respondents’ representative: PM Shabangu

Respondent’s address:
Telephone:
Cell:

Particulars of proceedings and representation

1. The matter was held on 22 May 2025 at the respondent’s premises in Mbombela.
2. The Applicant, Mzamo Elmon Mahlalela, was represented by Linda Mohlala, an Attorney from Tarwa Attorneys, while the 1st respondent, Mpumalanga Provincial Department of Education’s Head of Department (HoD), was represented by Phemba M Shabangu.
3. The 2nd respondent, Celumusa Blessing Dikiza, was also represented by Phemba M Shabangu.
4. The proceedings were in English and digitally voice recorded.

Background and Nature of the dispute

5. The applicant was employed by the 1stt respondent as a PL1 teacher in January 2017, at Masitakhe secondary school.
6. He applied for the advertised promotional post at the same school and he was shortlisted. He was later attended the interviews and obtained position one, but he was not appointed.
7. He challenged both the procedural and substantive fairness of the 1st respondent’s failure to appoint him and he sought to be appointed into that disputed promotional post or otherwise he be compensated.
8. The 1st respondent confirmed that the applicant obtained position one, but it was later discovered that he was not teaching the subjects involved in the post.
9. The applicant testified as a sole witness and submitted one bundle of documents marked A, while the 1st respondent called 3 witnesses including the 2nd respondent and submitted two bundles of documents marked R and ER respectively.

Survey of evidence by the applicant.
The applicant, Mzamo Elmond Mahlalela, testified under oath as follows:

10. He applied for the promotional post as advertised and he was shortlisted. He was invited to attended the interviews which he did, and obtained position one. He was later told that there was a dispute where it was alleged that he did not qualify and had a zero experience, see page 7 of bundle A and page 17 of bundle R. The investigation was conducted but he was not approached during that investigation. He also learned that the labour relations officer came to interview the other candidates at the school. He was later informed that his candidature was withdrawn. The grievances lodged by the other candidates were not even formal, see page 7 of bundle A. He was however, teaching natural sciences include Agriculture and physical science as well as life sciences. The 2nd respondent was teaching Siswati and Agriculture. The advert needed someone who could teach life sciences and Agriculture. He also got the information that it was the union which insisted on the 2nd respondent’s appointment, see paragraph 2 bullet one on page 17 of bundle R. He met all the requirements needed for the post. The criteria thereof were on page 27 of bundle R. He had six years of experience and the advert did not indicate the number of years in experience required. He was recommended as the first best candidate in order of preference, see page 49 of bundle R. He was scored 199 points while the 2nd respondent was scored 178 points, see page 521 of bundle R. He was further recommended for appointment by the panel, see page 52 of bundle R. The circuit manager also signed the recommendations to appoint him, see page 59 of bundle R.
11. The memo drafted after the investigation was on page 72 of bundle R. The requirements used to overturn his appointment on page 73 of bundle R; were the same requirements he possessed as a candidate. His class allocation was on page 5 of bundle ER where it showed that he was teaching Physics. The class allocation of the 2nd respondent was on page 6 of the same bundle. He challenged his experience as displayed by the 1st respondent on page 7 of bundle ER. The 2nd respondent was permanently employed in 2020 when he (applicant) joined the school. He (2nd respondent) was initially working as a substitute educator in different schools. He (applicant) joined the school in 2017 and his experience was 2 years teaching physical science in grade 10, 6years in teaching physical science in grade 11 and 4 years teaching physical science in grade 12. The 1st respondent did not mention natural sciences under his experience, which was incorrect. During the pre-arb meeting he was told by the 1st respondent that he qualified for the post.
12. During cross questioning, the applicant conceded that he had no experience in teaching Agricultural sciences and life sciences. He applied for both the mathematics post as well as the physical sciences and agriculture post which appeared on the advert, see page 1 of bundle A. However, his dispute was based on the post for natural sciences. He filled in form E1 for his referral. It was put to him that on page 40 of bundle R it was indicated that he was teaching life sciences, Maths and Physics at Solomondale in January 2017 but on page 40, he indicated that he started teaching at Masithake in February 2017. He did not dispute that. It was further put to him that the testimonial on page 69 of bundle R was written by another Mahlalela and Hadebe D. He did not want to comment on the said testimonial written for him. He did not agree with the information for 2022 on page 5 of bundle ER. It was put to him that he had two years in teaching natural sciences. He confirmed and added that when they apply, they would normally refer to PAM. It was put to him that he did not have experience relevant to the post. He did not want to answer that question.
13. In closing he argued that the investigation was not properly done. Why was he shortlisted if he did not qualify. The 1st respondent created a false hope for him. He prayed for compensation or he be considered for another promotional post.

Survey of evidence by the 1st respondent.
1st witness, Doctor Hadebe, testified under oath as follows:

14. He was the principal of Masitakhe school. The information on page 5 of bundle ER was a true reflection of what has transpired. Page 6 of the same bundle was also a true reflection. The applicant taught natural sciences for a year.
15. The applicant through his own confessions indicated that he had problems with teaching natural sciences.

2nd witness Thulisiwe Margaret Miya, testified under oath as follows;

16. She was the labour relations practitioner and she was the one who investigated the matter. Three candidates lodged a grievance complaining that the 2nd respondent was shortlisted even without having taught the subjects. The chairperson of the SGB confirmed that the applicant did not teach the subjects relevant to the post. The district director was therefore advised accordingly. The findings of the investigations were that the applicant did not have experience in the said subjects.
17. The correct procedure to lodge a grievance was to fill in a form which was given to the complainants to fill and they did.

3rd witness, Celumusa Blessing Dikiza (the 2nd respondent) testified under oath as follows;

18. He was familiar with page 6 of bundle ER and he started teaching Agriculture at Masitakhe school in 2021 to 2023 as per the page. However, his actual year of starting to teach was in 2016 at Joseph Matshebula school, and in April 2017 he was teaching at Dumisani secondary school in Bushbuckridge, where he was teaching Agriculture and Siswati. The performance document on page 2 of ER showed that he was teaching Agriculture. He was awarded the certificate of achievement for the 2022 results, see page 21 of bundle ER.
19. In closing, the 1st respondent argued that the applicant indeed applied for the advertised post and he was recommended by the SGB for appointment. However, the investigation established that the applicant misled the panel, and that made him to lack moral integrity. The 1st respondent could therefore not employ the dishonest candidate, the applicant in this case. There was no unfair labour practice but a correction of the mistake committed by the applicant. He also did not have the automatic right to be employed as per Noonan v SSSBC labour court case.

Analysis of the evidence and arguments

20. The dispute before me was about the unfair labour practice in terms of section 186 (2)(a) of the Act in that, the 1st respondent failed to appoint the employee into the advertised promotional post of the departmental head Life sciences and agriculture..
21. During the cross questioning of the applicant, it was revealed that he did not have the required experience in the subjects which were mentioned on the advert, and he did not dispute that revelation. It was also discovered that his testimony was contradictory, for instance, on page 40 of bundle R it was mentioned that in January 2017, he was teaching life sciences, Maths and Physics at Solomondale, but on page 40, he indicated that he started teaching at Masithake in February 2017 . He did not dispute the testimony of the 1st witness of the 1st respondent that he (applicant) through his own confessions indicated that he had problems with teaching natural sciences. He further could not comment on his testimonial on page 69 of bundle R which was written by another Mahlalela and Hadebe D. The 1st witness of the 1st respondent, corroborated that the 2nd respondent met all the requirements of the post and the applicant did not challenge him. The 2nd witness of the 1st respondent also testified that the investigation revealed that the applicant did not have the experience in the subjects required for the advertised post. The applicant challenged that version only by indicating that the investigation was not properly done because he was not interviewed.
22. My finding on the balance of probabilities is that the applicant misled the interviewing committee. He did not have the required experience in teaching the subjects mentioned on the advert. There was further no evidence to corroborate that the 2nd respondent was not suitable for appointment.
23. My view is that an employee who alleged that he was the victim of unfair labour practice bears the onus of proving the claim on the balance of probabilities, see ELRC guidelines on unfair labour practice promotion and arbitrations, Collective Agreement number 3 of 2016. The 1st respondent therefore did not commit any unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as mended (the Act).
24. The decision to promote or not to promote falls within the managerial prerogative of the employer, see SAPS v SSSBC and others BLLR 892 (LC). This is a principle which was adopted in several court proceedings. Also see the Constitutional court in SAPS v PSA (5 BLLR 383 (CC)) where it was held that the employer retains discretion in deciding whether or not to promote the incumbent even if they meet the criteria outlined in the relevant regulations. This does not necessarily mean that employers can do as they please and appoint candidates based on arbitrary grounds, hence the existence of bargaining Councils and the CCMA which have commissioners to preside over such dispute to determine the fairness thereof.
25. In the light of the above, it is my conclusion that the applicant failed to discharge the onus of proving that the conduct of the 1st respondent by failing to appoint him was unfair, and his prayers to be appointed or compensated should fail. The prayers of the employer for the case to be dismissed should therefore stand.
    Award
26. The 1st respondent did not commit an unfair labour practice when declining to appoint the applicant in the advertised promotional post of life sciences and agriculture at Masitakhe school.
27. The applicant’s case is dismissed.
28. There is no order with regard to costs.

Seretse Masete

Date 31/05/2025
ELRC Panellist