17 June 2025 2025 -ELRC723-24/25LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No : ELRC723-24/25 LP

PANELLIST: MMAKGARE SHAI

DATE: 03 OF JUNE 2025

In the matter between

MUDZHIGI NR Applicant

And

LIMPOPO DEPARTMENT OF EDUCATION 1st Respondent

MUDAU TJ 2nd Respondent

ARBITRATION AWARD

 DETAILS OF HEARING AND REPRESENTATION

The matter was scheduled for hearing on the 24th – 25th of May 2025 and 19th – 20th of June 2025 at the Department of Education, Old Parliamentary offices, Thohoyandou.
Both parties were present. The applicant was represented by Mr. Rosikwa Masibigiri, an attorney from Sigogo Incorporated, whereas Mr. NE Nyathela, its Deputy Director, Labour Relations represented the respondent.
Both parties submitted bundles of documents, bundle A by the respondent and bundle B by the applicant.
At the end of the proceedings, both parties filed closing arguments and same were considered in arriving at conclusions herein.
The proceedings were digitally recorded.
ISSUE TO BE DECIDED
I am called upon to determine whether the 1st respondent by not shortlisting the applicant committed unfair Labor practice or not. If I find in favor of the applicant, I will determine an appropriate remedy for him, if not I will further absolve the respondent.
BACKGROUND TO THE ISSUE
The 1st respondent advertised vacant principalship post number 1 at Shayandima Secondary School in an Open vacancy List Number 1, volume 1/2024 dated 17 April 2024. The minimum qualification requirement for the post was REQV 13.
Both the applicant and the 2nd respondent applied for the advertised post.
The applicant was shortlisted during the first shortlisting process which was nullified after the South African Democratic Teacher’s observer lodged a grievance which was substantiated.
Re-shortlisting was conducted under a new shortlisting and interview committee, and the applicant was not shortlisted.
The applicant lodged a grievance at the Circuit Office, and it was dismissed. The interviews were held on 27 August 2024 and lodged grievance with the district on the 27th of August 2024. Thus, the interviews were already held on the 26th of August 2024 when he lodged.
At the district level, the grievance was dismissed, and the applicant then lodged with the Educations Labour Relations Council, case number ELRC723-24/25LP.
As a relief, he seeks to be shortlisted as captured in the referral form but in the pre – arbitration minutes and during his testimony in chief and under cross examinations, he indicated that he seeks protected promotion as a relief.
The applicant complained that he was excluded in the second shortlisting, and this amounted to unfair Labour practice.
He further complained that when he lodged a grievance, this cause of action did not stop the interview process, whereas that of SADTU did stop the interview. This, according to him, amounted to unfair Labour practice.
On substantive fairness, the applicant contended that he should have been shortlisted.
On the other hand, the 1st respondent contended that he was not excluded but considered, after which he was not shortlisted. Further, it contended that there were better candidates than the applicant. It contended further that a proper procedure was followed in the process of shortlisting.
SURVEY OF EVIDENCE FOR THE APPLICANT:
MUDZHIGI NNDWAMATA RECKSON TESTIFIED UNDER OATH AS FOLLOWS
He is currently employed as a Deputy Principal at Shayandima Secondary school. An advert for the position of the principal was issued out and he applied for the post. In the interim, he was appointed as acting principal and leading up to the appointment of a principal. He acted for a period of less than twelve (12) months.
He was shortlisted and invited for interviews scheduled for 23rd of July 2024. The interviews were cancelled due to a grievance lodged by SADTU observer.
The applicant was again invited for the interviews scheduled for the 29th of July 2024. At about 12h00, he received information that the Panellists were threatened, and the interviews were cancelled. On the day, he however signed a register.
He lodged a grievance with the circuit manager after realizing that there were candidates coming to collect letters of invitation for interviews.
The grievance was dismissed, and he referred it to the district office, the chairperson told him that he does not have qualifications. He, however, has postgraduate Diploma in Public Management and had to get a score of 4 out of 4 in phase 2. He should have got a score of 36.
His further complaint is that his grievance did not stop the interviews whereas that one of SADTU observer did.
At the time he acted as the principal, the pass rate at grade 12 was 92.25% in term 1 and 95% during term 2. At the end of the year, it fell to 80% whereas the target was 100%.
He possesses REQV 17, as he has a three-year secondary teacher’s diploma, a one-year Higher Education Diploma in Education; a post graduate Diploma in public management is NQF 8, which is equivalent to a master’s degree. He relies on the National Education Policy Act 27 of 1996.
He conceded that the above Act does not apply to REQV levels which is a requirement for a candidate to be appointed as an educator but insisted that PAM and NEPA should be read together.
He conceded that he does not have a degree.
He was referred to PAM chapter B.1, REQV B.1.1. which defines REQV as follows: A relative value is attached to an approved qualification or combination of qualifications in accordance with the measures as set out in the policy document: “Criteria for the Evaluation and Recognition of education for employment in Education. ”It further says that the recognition of diplomas for salary purposes restricted to not more than two recognized post grade 12 diplomas , to a maximum of REQV 15. It was also referred to PAM Chapter B2 which contains the
“requirements of REQV levels.” It was then put to him that all male candidates who were shortlisted had more than one Honor’s degree and Master’s degree which put them at REQV 16. He conceded that he does not have a degrees and that the shortlisted candidates have higher qualifications than him.
He, nevertheless, insisted that his combination of diplomas puts him at REQV 17.
SURVEY OF THE RESPONDENT’S EVIDENCE
MAGOMA AVHASHONI ERIC TESTIFIED UNDER OATH AS FOLLOWS:
He was the chairperson of the selection committee and did not shortlist the applicant.
The applicant was shortlisted out under phase two (d) because the shortlisted candidates had more than an Honours degree and more than one Masters Degrees. The applicant did not have a degree except a combination of Diplomas which place him in REQV 14.
A post graduate diploma in public management is not a qualification in education as such they did not consider it. He denied that the applicant is at level REQV 17, which is a Doctorate in Education.
Under cross examination, he insisted that the applicant does not have REQV 17 but a combination of diplomas which place him in REQV 14, whereas the shortlisted candidates are at REQV 16 level.
The shortlisting process is guided by Limpopo Chamber, (ELRC) Collective Agreement 02 2020 contained at pages 202-203 of bundle A. The applicant has an M+4, which is equivalent to REQV 14.

MS. SIVHABU A L, TESTIFIED UNDER OATH AS FOLLOWS

According to the qualifications contained in bundle A, the applicant has REQV 15 for salary purposes. The applicant does not have REQV 17, as one needs to have a PHD degree to be graded REQV 17.
The post graduate Diploma in Public Management is not a qualification in education. She did not deal with the applicant’s grievance but was an observer at the session at the district level. The applicant was dissatisfied with the outcome and indicated that he would approach the ELRC.
She confirmed under cross examination that at the time the applicant lodged a grievance with the district office, the interviews were done, hence the grievance could not suspend the interviews.
ANALYSIS OF EVIDENCE AND ARGUMENTS
Section 188(2) of the Labour Relations Act 66 of 1995 as amended defines unfair Labour Relations as follows:
“Unfair Labour practice means any unfair act or omission that arises between an employer and an employee involving:
a) 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 provision of benefits to an employee.
b) …………….”
The Collective Agreement No 3 of 2016 ELRC GUIDELINES: Promotion arbitrations paragraph 31 provides as follows:
“An employee who alleges that he is the victim of an unfair Labor practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the Labor practice, but also that it is unfair”
The same Collective Agreement at paragraph 33 says the following:
“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 in order for the employee to prove an unfair Labor 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, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer”
The above Collective Agreement at paragraph 32 says:
“An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement”
According to Personnel Administration Management chapter B.1 REQV B.1.1, a relative value is attached to an approved qualification or a combination of qualifications in accordance with the measures as set out in the policy document: Criteria for the Evaluation and Recognition of Education for employment in Education. This document further provides that the recognition of diplomas for salary purposes is restricted to not more than two recognized post grade 12 diplomas, to a maximum of REQV 15.
In our case, the 1st respondent advertised vacant principalship post 1 number 1 at Shayandima Secondary School in an Open Vacancy List Number 1, volume 1/2024 dated the 7th April 2024. The minimum qualification requirement for the post was REQV 13. Both the applicant and the 2nd respondent applied.
The applicant was shortlisted, but this shortlisting was cancelled when SADTU observer lodged a grievance.
The new shortlist was conducted under a new committee and the applicant was not shortlisted. He regarded this as a form of unfair conduct on the part of the 1st respondent. The evidence shows that the applicant met the minimum requirements of REQV 13. Evidence also shows that the applicant was considered at phase 1 but was listed out at phase 2 (d). This part required additional qualifications in education. The applicant insisted that he was at REQV 17. However, oral evidence and documentary evidence show that he is at REQV 15.
The male candidates who were his comparators had more than one master’s degrees and were regarded as at REQV 16. The applicant under cross examination conceded that he does not have a degree and that his comparators were better qualified than him. In terms of experience, his comparators had more experience in the substantive positions of deputy principal and principalship. The applicant contended that his experience as a member of a school management team should be regarded as experience in the same light as the experience in a substantive post. Obviously an ordinary C1 teacher serving in a school management committee cannot expect to compete equally in so far as experience in management is concerned, with those who have been in the substantive positions of deputy principal and principal when a position of principal is advertised. It is clear from the afore-going that the applicant met stronger competition.
The applicant further complained that he was unfairly excluded in the shortlisting process. However, evidence shows that the applicant was considered as he met the minimum requirements but was shortlisted out at phase 2 (d) due to lack of additional qualifications in the education sector. The 1st respondent led evidence and argued successfully that the post graduate diploma in public management is not a qualification in the education sector, so it was correctly excluded.
On the contention that the grievance he lodged could not suspend the interview process, whereas SADTU observer’s grievance did so, is without merit as evidence shows that by the time he lodged the grievance with the district office, the process of shortlisting was completed. The horse had already bolted. He lodged his grievance with the district office on the 27 August 2024, whereas the interviews took place on the 26 August 2024.
In the final analysis, I conclude that the applicant failed to discharge its onus on preponderance of probabilities that he was the best of all candidates, nor shown any bad, ulterior motive or unreasonable behavior on the part of the 1st respondent that prevented him from competing on the same footing.