Commissioner: S Fourie
Case No.: ELRC637-22/23NW Date of Award: 17 November 2025

In the ARBITRATION between:

ANTHONY TWENWBOAH KODUAH
(Union / Applicant)

and

DEPARTMENT OF HIGHER EDUCATION (North West)
(First Respondent)

and

LUCAS PHIRI

(Second Respondent)

Union/Applicant’s representative: Mr. T Monkwe from SADTU


Respondent’s representative: Mr. S Mophaki

DETAILS OF HEARING AND REPRESENTATION

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
   “ELRC”) in terms of Section 186(2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 16 January, 12 February, 9 May, 1 July, 27 August 2025 and finalized on the 21st of October 2025. The Applicant was present and represented by Mr. T Monkwe from SADTU. Mr. S Mophaki an ER official from the Department of Higher Education represented the First Respondent the Second Respondent represented himself after he initially represented by a SADTU official. This dispute had several reasons not to finalized within a reasonable time-period due to various reasons which was directed to Council within the outcome reports but will not be repeated here. It is noteworthy to state that I took the arbitration over which was a part heard before Commissioner G Phalane during 2024. The recordings were made available which I listened to before I commenced presiding over the dispute from the 16th of January 2025.
2. The parties were afforded the opportunity to present written heads of argument to be submitted by the 6th of November 2025. The arbitration was held at the District Office of the North West Department of Education, Potchefstroom and the process was digitally recorded.

BACKGROUND

3. The Parties concluded a pre-arbitration minute in which they agreed the following to be common cause which serve to be a background as well. The Applicant has been in the Respondent’s employ since 1 April 2012, currently employed as Head of Department (PL3), at Taletso TVET College, Mafikeng Campus. The second Respondent was the Head of Department (PL2) at the same school. The vacant Campus Manager post (PL5) at the above stated College, was advertised with post number TSO/01/22. The Applicant was not shortlisted or interviewed for the post. The second Respondent, was shortlisted and invited to attend an interview. The second Respondent, Mr. Lucas Phiri, was recommended and approval was granted for his appointment as the Campus Manager of the College on 1 October 2022.

ISSUE TO BE DECIDED

4. Whether the Respondent committed an unfair labour practice by failing to shortlist the Applicant to the post of Campus Manager (PL5), alternatively whether the Respondent committed an unfair labour practice in relation to the appointment procedure followed. In essence, I am required to determine, firstly, whether the Applicant met the minimum requirements of the post as advertised, and secondly, whether the Applicant was supposed to be shortlisted. The parties to this dispute agreed unequivocally to place the following in dispute:
   4.1 The Applicant qualified to be shortlisted;
   4.2 Some of the shortlisted candidates, including the appointed candidate (the second Respondent), did not qualify to be shortlisted (Manamela and the second Respondent);
   4.3 The application of the second Respondent was submitted after the closing date;
   4.4 The Applicant was disqualified for failing to complete the Z83;
   4.5 The Applicant did not update his CV.
5. The relief sought in the pre-arbitration minute under 2.23, is for the appointment to be set aside and the process to start afresh. SURVEY OF EVIDENCE AND ARGUMENT
6. For purposes of this award, I do not intend, to record verbatim the evidence led, the submissions made and or the arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented. The Applicant entered into evidence a bundle of documents, submitted Bundle A with pages 1 – 57 and the Respondent submitted a bundle of documents as Bundle R (1), with pages 1 – 54, R (2) 1 -10 pages and R (3).

APPLICANT’S VERSION

7. Anthony Tweneboah-Koduah (Tweneboah-Koduah) testified under oath. He stated that the Respondent shortlisted candidates who did not qualify to be shortlisted. Referring to the advertisement, the first Respondent advertised the Campus Manager Post (Level 5) of which the minimum requirements were stated as follows: (See R1, p14) – An Appropriate National Diploma/Degree in education or equivalent qualification with a minimum of REQV 13. Seven years teaching experience with a minimum of three years with a minimum of three years’ experience at the management level. Registered with SACE. Sound communication skills. Computer Literacy. A valid driver’s license. These requirements, the Applicant stated he met referring to bundle A page 53.
8. Referring to bundle A page 53 (a spreadsheet with all the applicants), the Applicant possess a Master degree in Education which is in line with the advertisement. He has more than 3-years managerial experience, registered with SACE (on A48), computer literate and having a valid driver’s license. He referred to his Master degree on his CV on page 37. He stated that none of the listed applicants on page 53 could be equivalent to his Curriculum Vitae. When he applied for the post he had 20 years teaching experience and 12 years’ managerial experience. He referred to his leadership positions (SMT) on A39, as the Head of discipline, the acting Head for mathematics and the Head of Engineering meeting the requirement. He served on the SMT (senior management team) for three years.
9. Referring to A 17, an investigation report into the shortlist process, the Applicant denied the notion where it states that the Applicant did not include any managerial experience on his curriculum vitae. Referring to A18 it reads: According to the information collected it is evident that you did not update your curriculum vitae as a result the panel could not shortlisted you because they know you as an employee of Taletso TVET college. It is for this reason that you were not shortlisted. The college takes this dispute as finalized. The Applicant referred to application and the shortlisting meeting (on A12) considering the Z83 form, there is no reason not to have been shortlisted.
10. Referring to the candidates who did not meet the requirements but was shortlisted on A53 – Manamela who has a Master’s degree in Project Management and not in Education which means he did not meet the requirements for the position. Referring to the second Respondent, who was a PL1 educator did not have the minimal managerial experience and only PL2 educators’ gain managerial experience. The second Respondent was not supposed to be shortlisted.
11. Referring to the second Respondent’s curriculum vitae for the period 2008 – 2012, Phiri stated that he was employed at Diepsloot as a PL2 educator which is Gauteng Province and not the North West which is not true because he was employed by the North West Department of Education as a PL1 educator. The second Respondent’s application (on R49) para 10, he indicated to have a PL2 educator which is not true. It means the second Respondent was a PL2 educator from 2008 – 2012 and thereafter a PL1 lecturer at Taletso (the Respondent). The reason for the second Respondent to have demoted himself was for greener pastures. Referring to the PERSAL printout on A30 showing the salary notch of the second Respondent relevant to his application showing to have been a PL2 educator at Diepsloot form 2008 – 2012, but the PERSAL printout shows the second Respondent working for the NW Department of Education as a PL1 educator since 2008 not corresponding with each other. If the second Respondent was ever employed by the Gauteng Department of Education, it would show on the PERSAL system but it shows he was employed in North West and terminated on 14 January 2011.
12. Referring to PERSAL extracts on 31 – 33 of the Applicant’s bundle, the second Respondent was employed at Boitseanape Combined School in 2008/07/01 and on 11 July 2012 he was still a PL1 educator at the same school in the North West and not a PL2 educator – HOD in Gauteng. Referring to the application of the second Respondent, the shortlisting was done on 5 November 2021 although the second Respondent submitted his curriculum – qualifications on the 13 of October 2022 after the shortlisting process. The date stamp shows 13 October 2022. The qualifications were not submitted with the curriculum vitae. The appointment was done on the 17th of October 2022, 4-days before the second Respondent submitted his qualifications and could not have been shortlisted.
13. Referring to R14 – the general instructions when submitting an application on Z83 that when a curriculum is submitted, certified copies of all qualifications, identity document and driver’s license must be submitted. The Applicant’s view is that he met the requirements but was not shortlisted in relation to Manamela and the second Respondent who did not meet the requirements being dishonest, but was shortlisted.
14. During cross examination, of the first Respondent, referring to R (3) paragraph 16 of the: Filling of the Advertised post to the Director General where it states that Manamela is in possession of a Master’s of Science in Project Management and a National Diploma Post School Education and a Senior Certificate to which the Applicant responded that the documentation was not submitted by the Respondent. Referring to paragraph 3 in respect of the second Respondent having an Education Diploma, the Applicant questioned it not to be correct in relation to managerial experience. The Applicant questioned the duty list in paragraph 10 being the duties of a PL2 educator and not the duties of the second Respondent being a PL1 educator. The Applicant agreed that some of such duties can be delegated to a PL1 educator to gain managerial experience for a period of time.
15. Referring to the TVET experience of the second Respondent, the Applicant referred to his experience of over 10 years in relation to the second Respondent He agreed that the shortlisting committee made decisions on the information before them. With reference to the Applicant’s curriculum and the Z83 that the committee did not indicate any TVET experience for the Applicant, he responded that it was an oversight because his curriculum talks about his experience. To the question that the CV shows 3 years’ experience, the Applicant responded that it is under job objectives showing more than 10 years’ experience. The Applicant agrees that his CV does not show TVET but the TVET comes in where he said HOD Taletso TVET which means as an HOD he is in a managerial position. The Applicant further explained that the leadership positions – the SMT was from 2010 to date when he submitted his CV in 2021 being 14-15 years. His CV indicates 10 years of outstanding teaching experience being the reason it was an oversight on the panel side.
16. For the Applicant, the Respondent failed to verify the information submitted by the second Respondent on the PERSAL system. He stated that the PERSAL system does not lie. The Applicant denied the notion that the Z83 was not applicable anymore being outdated referring to a Circular of 2021. He stated that he complied with the advertisement and the Z83.
17. During cross-examination of the second Respondent, the Applicant denied to have been involved in the recruitment of staff but the first Respondent must have verified the information received. The Applicant was the one who sourced the PERSAL information through HR which is in the Applicant’s bundle but not willing to declare who the person was. The Applicant denied the statement that the PERSAL information is not authentic.
18. Moseme Patricia Lekoma (Lekoma) testified under oath. She works as a HR control assistant since 26 July 1996. Her duties entails HR administration and the monitoring of the PERSAL system to capture appointments. She was referred to second Respondent’s curriculum vitae (CV) where it is stated that he was employed by the Department of Basic Education – Diepsloot Secondary School as an HOD from 2008 to 2012. She stated that Diepsloot is not in her district referring to the PERSAL service record of the second Respondent on A30, she stated that it shows appointment dates, salary adjustments and movement between schools.
19. Referring to the service record on A30, she stated that the second Respondent was appointed with the NW Department of Education at Boitseanepe Combined School from 2008 to 2011 as a PL1 educator and terminated on 14 January 2011. The CV of the Applicant shows he was a HOD being a PL2 educator. She stated that the CV of second Respondent states that he was employed at Diepsloot from 2008 to 2012 as an HOD which differ from the PERSAL system for the same period. She stated that an employee can be appointed in two different provinces.
20. During cross-examination from the first Respondent, she stated that the PERSAL system may undergo changes but not disrupt the information which changed on the system. She did not agree with the notion that due to the changes on PERSAL in 1996 some employees who left early 2000 are not on PERSAL, responding that the system archive will show the information. Lekoma agreed to the notion that if an employee leaves the Gauteng Province to another province it would show on PERSAL. For information between 1996 and 2000, she stated that the provincial offices assist to access the information and if there is no tracking of it the person did not work for the relevant period.
21. She agreed that the information fed into the PERSAL system is done by persons working on the system. She stated it possible to make mistakes but for a person to receive a salary, information must be fed into the system. She agreed that if second Respondent acted as an HOD and paid by the Governing Body, such information would not reflect on the system. Lekoma denied that PERSAL would be wrong if Phiri worked in the Gauteng and not reflecting North West. She stated that they do a file besides PERSAL information. To the notion that if the second Respondent would fetch the file from Gauteng that it would contradict her version, she responded that PERSAL also shows the school at Boitseanepe which derives from the file they have with them and the attendance registers can show it. She agreed that PERSAL is illegal information if sources without authority and she does not know who sources it. In relation to the authenticity of the PERSAL print outs, she stated that she works with such information daily and is assured that it is PERSAL print outs.
22. During cross-examination from the first Respondent, Lekoma denied the PERSAL information to be fake because if the second Respondent would authorize her to draw his PERSAL information, it would be exactly the same. To the notion that Lekoma had illegal access to PERSAL, she responded that it is their work and even the Principle can have requested PERSAL information about the educators. Whether the POPIA act allows it, Lekoma responded that it is not allowed being the reason she said the second Respondent must allow her she to draw his PERSAL information which will adduce the same print outs. Lekoma could confirm that the documents A30-33 drawn from PERSAL is legitimate with no error in it.

RESPONDENT’S VERSION

The second Respondent –

23. Lucas Phiri (Phiri) testified under oath after he applied to re-open his case. The issue is whether he met the minimum requirements which he did and all information was submitted before the closing date. He was a HOD at Diepsloot Secondary school. It is an error by the Respondent not to have placed the correct documents to his bundle for which he cannot be punished although his application was complete with the signed copies in the Respondent bundle. He accepted the employment but cannot be blamed for the Respondent’s mistakes.
24. The Applicant’s issue for Phiri to be appointed relate to equity in South Africa. South African citizens must be afforded the chance to be appointed. The Applicant is a foreigner and not a National citizen of South Africa. For Phiri, the Respondent wanted the Applicant to be a legal citizen and did not meet the requirements failing to update his curriculum vitae. The position of campus manager is not a scarce skill and equity allowed Phiri an advantage. Phiri also stated that South Africa cannot compensate a foreign national and had a chance to be an educator and not a HOD which is unfair towards South African Nationals. Phiri cannot be blamed for the Respondent’s errors which the first Respondent did not bring along.
25. The Applicant presented information from the Department of Gauteng and North West which was not authenticated which cannot be used therefore failing to proof that Phiri worked in Gauteng. It is not for Phiri to proof it but for the Applicant to present proof and the authentication thereof because anyone can type such information. The lady who testified (the Applicant’s witness) is from the street and the Applicant could bring anyone to verify not knowing if she (Lekoma) is from the Respondent or from the street. The PERSAL printout was not authenticated and not to be used. The Respondent made an honest error. The PERSAL printout can be typed by anyone.
26. Phiri continued as a witness for the Respondent – stating that he is not corrupt with no evidence presented. The copies of his qualifications in the Respondent’s bundle of documents is what he submitted when he accepted employment.
27. During cross examination he confirmed that he referred to the Applicant’s witness as a “street maid” being someone from the street. He denied his statement to have been derogatory not being an insult but he could get someone from the street. For a “street maid” to be worthless who testified under oath, Phiri responded it to be Monkwe’s definition but simple language and not an insult to him. Phiri agreed that Lekoma stated that she is from the HR Department working with the PERSAL system and that Phiri did not challenge her credentials when she testified to which he responded that he did not think well but consulted and advised she might be from the street and for the PERSAL information to be authenticated. To the notion that Phiri failed to question Lekoma’s employment with the Department, he responded that he is doing so now being his platform to testify. For Phiri, Lekoma did not submit proof of her employment with the Department.
28. To the notion that the Applicant is a foreigner, he agreed that the Applicant possess a South African identity document and is a naturalised South African citizen (on R (1) page 31), although the Applicant is a foreigner also a citizen Ghana. For Phiri, the Equity Act gives privileges for South African citizens and the Applicant has no scares skill. Phiri could not quote the relevant section for Equity Act he referred to. To the notion that the Applicant being a foreigner to be no reason not to be shortlisted, Phiri responded that the Commissioner must be aware that the Applicant is from Ghana. To the notion that the Applicant’s nationality not to have been the reason for him not to have been shortlisted, Phiri responded that it is the reason he is raising it after he was not afforded to raise it in the pre-arbitration. Phiri was referred to the investigation report on A14 to A18, after the Applicant raised a grievance and agreed that the Applicants nationality was not a reason for not being shortlisted. Phiri also agreed that the advertisement (on R (1) page 14) does not say that a naturalised South African is not allowed, but the truth is it is the law and the advertisement should have been corrected. To the notion that a foreigner may apply in relation the advertisement, Phiri responded it to be a standard advertisement for all positions but is does not mean the Applicant could defraud what the Equity law states. Phiri could not show that the Campus manager position was an equity post but states that it was not a scares skill and foreigners must have scares skills. To the Applicant’s version that the post was not an equity post, Phiri responded that the Respondent made a mistake stating that ignorance before the law is not an excuse which means that the Applicant was not supposed to be shortlisted as simple as that.
29. In relation to the application for the post, Phiri responded that he does not know what happened because he attached the documents to his application although the Respondent attached it when he accepted the post after HR informed his that they lost the documentation. The Respondent requested the documents and instead of attaching the documents received form Phiri, the Respondent attached other documents to the application hence the date stamp on the documents in the bundle of documents is when he accepted the position around a year later.
30. Phiri denied that his application was submitted after the closing date of 10 September 2021 with the supporting documentation dated 2022 after the closing date referring to R (1) pages 43 – 46. Phiri agreed to be his documents and responded that he raised it when the Applicant requested documents for the Respondent that there were no documents and the Respondent indicated that the documents got lost, as a result the Respondent requested the Department of Higher Education to provide documents that spoke to his employment – when the documents came being certified which was the same documents he used when he applied for the post which the Applicant says Phiri submitted a year later when the interviews was done but was an error of Mophaki who compiled the bundles. Phiri stated that he was not at fault when he submitted the documents a year later. Referring to the documents itself R (1) pages 43 -46, Phiri refrained from answering the question that the date stamp on it is after the closing date and on a second time responded that the date stamp is a year after the closing date. To the question whether the documents Phiri submitted before the closing date, he responded that he asked for it to be submitted as annexure B (or R (2) pages 8 -14) which was submitted from HR.
31. Phiri agreed that the Applicant requested for documents to be submitted of all the shortlisted candidates (see A19). Referring to a directive of Commissioner D Smith (on A26) for the documents to be provided to the Applicant by the 19th of May 2023 which was not provided, Phiri responded that it was provided on the day of the arbitration but not aware that it was wrong being the reason he went to HR.
32. For Phiri the Applicant did not meet the requirements for the post. Referring to R (1) page 24 that the Applicant possess a Master’s degree, Phiri remained silent. The question was repeated and Phiri responded that it is a Masters qualification but that the Applicant’s CV was not updated. Phiri agreed that he possess an advanced Diploma in education and agreed that the Master’s is a higher qualification but that the Applicant failed to update his CV. Phiri did not know that the Applicant had the highest qualification of all the applicants. Phiri did not know the Applicant exceeded the minimum 3 years’ managerial experience but stating that the Applicant did not update his CV. Phiri agreed that the Applicant was a HOD at the Respondent from 2010 to the date of the application but responding that the Applicant’s CV was not updated.
33. Referring to the shortlisted candidates on A52 and that the spreadsheet is used because the information of all the candidates went missing – Phiri denied the Applicant’s notion is he did not meet the minimum requirements of the position. Referring to Manamela in relation to advertisement (on R (1) page 14), that he did not meet the minimum requirements having a Master’s degree in Project Management, Phiri responded that there were no documents to compare what is on the spreadsheet and could not say whether a qualification in project management is a qualification in education. Phiri refrained to respond to the notion that Manamela did not have the relevant qualification and experience but was shortlisted in relation to the Applicant who had the highest qualification with the relevant experience and not shortlisted.
34. Referring to Phiri’s application on R (1) 50 being which information he agreed to, he was referred to leaving a PL2 position for a PL1 position for greener pastures, to which he responded that when he applied for a position at Higher Education to Basic Education the Minister covered the positions and the salary was better. To the notion that Phiri was never a PL2 educator being the reason Phiri could come to Taletso, Phiri responded that he had a brother in Mahikeng who looked after his parents whilst he was in Gauteng in 2012 so he made a choice to be closer to his parents so for him it was for greener pastures and not about PL1 or PL2.
35. Referring to A30 – the PERSAL information that shows Phiri’s service record between 2008 – 2011 to have been at Diepsloot but was in the North West to which Phiri responded that he will not subject himself to answer to a document that might have been typed and not authenticated. To the question if Phiri can present an authenticated document to show he was employed in Gauteng, Phiri responded that he could not just go to Gauteng and get it if the Applicant is not able to authenticate A30 to be the correct one. To the notion that Phiri cannot proof that he was not employed in as a PL2 educator in Gauteng, Phiri responded that there is a 99% chance that A30 was typed. To the version that if Phiri had the proof to negate A30- A33 that he was not employed in Gauteng he would have had present it at the arbitration, he responded that the onus is on the Applicant and he would not agree to documents not authenticated, but he will present a witness. Phiri agreed that it is his name and persal number appearing on A30-33. Referring to A32, Phiri did not dispute him working at Boitseanape.
36. In relation to the Applicant who presented documentation (on A55 –A57) about his managerial experience which Phiri did not, Phiri responded that it is the Applicant who brought an unfair labour practice and presented unauthenticated documents. To the notion that Phiri is not able to proof that he was employed as a PL2 educator in Gauteng lying to the Respondent which is the reason he resigned, Phiri responded that it is just allegations and that he did not run away.
37. Referring to A12- A13 that the reason the Applicant was not shortlisted, was not because his CV was not updated to which Phiri stated that he did not know but stated that the Applicant is a foreigner which was raised with the previous commissioner and the Z83 form was wrong. Referring to A34 Phiri agreed that it states no TVET experience. Referring to R (1) page 14 that TVET experience was not a requirement in the advertisement, Phiri agreed that he could not see it but think that it was. Phiri did not dispute that the Applicant had the requisite TVET experience as an HOD referring to A39 however Mophaki stated that the Applicant did not update his CV so it cannot respond to it.

Respondent’s second witness –

38. Emily Tlhako (Tlhako) testified under oath. She works for the secretariat with a role in the recruitment process. It was herself and Miss Matokeng who compiled the shortlist. To the Applicant version alleging corruption in Phiri’s appointment, Tlhako responded that they compiled the shortlist according to the information in the CV’s received. She stated that Phiri never interfered in the shortlisting process.
39. Referring to R17 -22 the experience of the Applicant (on R20) after lodging a grievance, Tlhako agreed that there is no managerial experience reflected but listed under leadership which was not the fault of the Respondent. She stated that the Applicant did not state the period he was an HOD at Taletso TVET College. She stated that SMT is not part of the College’s management structure but that of a School. She stated that SADTU was part of the recruitment process with no objection received from the union. She was not aware whether the DG was aware of the Applicant’s allegations but the files was left at the Deputy Director. The process after the letter of appointment was issued to the employee with copies to accept or not where after it is processed. She communicated with the successful candidate to submit newly certified copies to telly with the date of acceptance or within the same month. She could recall when the acceptance letter was communicated but was towards the end of the year around the certified date on the Senior Certificate being 13 October 2022. Tlhako agreed that it was when the new copies were requested.
40. In relation to Manamela – she agreed that the qualification was a relevant education qualification. In relation to the teaching experience of Manamela, she responded that the panel decided to give Manamela a chance to be interviewed and she could not see Manamela’s CV because it went missing with the box with all the documents of this particular post. She stated that the Respondent investigated the missing box and she made a statement to the SAPS about the missing box.
41. During cross-examination, she knows the Applicant as a colleague at the campus and Phiri as a previous colleague. Referring to the shortlisting minutes dated 5 November 2021 (on A12), she agreed it to be valid and authentic wherein she participated. She agreed to be an experienced HR person since 2017 with a National Diploma in HR Management and the custodian of HR policies tasked to advise the panel. She agreed that it is not indicated on A12 – A13 why the Applicant was not shortlisted and also not that the Applicant’s CV was not updated. She was referred to the CV on A34, stating that it is written on top – no TVET experience which was the reason for not shortlisting the Applicant. She recalls that it was not about the CV not been updated but about no TVET experience.
42. Tlhako could not recall TVET experience not being a requirement and referred to the advertisement. Referring to the shortlist on A53, Tlhako referred to it at the longlist and the one who complied it with the Applicant listed under number 17. She agreed that the information came from the CV’s. She agreed the minimum requirement in the advertisement was a Diploma in Education. She agreed that the Applicant has a Master’s in Education referring to the longlist. She agreed the advertisement required 7 years teaching experience and that the Applicant met the requirement. She also agreed that the Applicant met the requirement of minimum managerial experience. Tlhako agreed that the Applicant qualified but cannot say she was happy because she did what was obtained for the CV’s. Tlhako did not respond to the notion whether she understood the Applicant’s CV and contents. She agreed to know the recruitment policy (R (1) 1-13), confirming that it does not state how to write a CV. She agreed that the advertisement also did not indicate how a CV must be written. She agreed that applicants for employment writes CV’s in different ways with the Applicant also in a different way. She agreed that the contents of a CV are of importance.
43. Referring to the longlist on A53 – Manamela listed under number 1, she agreed that he possess a Master Degree in Project Management. She agreed that it is not a qualification in Education. Referring to R (3) page 5 a National Diploma in Post School, Tlhako agreed that it was not listed under the longlist on A53. To the notion if it is possible not to have been on the CV of Manamela, she stated that it might be possible not to have captured it but possible to have been attached to the CV or a mistake. For Tlhako the Diploma in Post School is an education qualification. She was referred to Google showing it not to be a qualification in teaching and just a qualification after Grade 12. She agreed that the advertisement required 7 years teaching experience and that Manamela did not have it. She also agreed that the job title of Manamela shows to be Project Manager and not a Teacher. Tlhako agreed that Manamela did not have the relevant qualifications and did not meet the requirements of the post.
44. Tlhako agreed that managerial experience is general in respect of Schools or Colleges. She agreed that the Panel shortlisted Phiri on the basis of School experience. She agreed that the Applicant’s CV (R (1) page 20) under leadership refers to him being a member of the SMT and acted as HOD in 2010 where after he was appointed in 2012 as HOD. Tlhako agreed that the Applicant qualified having the relevant qualifications and experience. She was not aware that none of the other applicants was at the same level qualified as the Applicant.
45. In relation to the PERSAL information on A30, she agreed to be exposed to such information confirming it to be from the PERSAL system serving to be a service record. She agreed that is shows that Phiri was employed by the NW Department of Education from 2008 to 2011. To the notion that Phiri says he was employed by the Gauteng Education Department which negate A30, she responded that A30 is a service record from the Department of Education and not the Department of Higher Education not showing managerial positions held. She saw it on Phiri’s CV that he was employed at Diepsloot as an HOD. To the notion whether A30 and the CV of Phiri makes sense, she responded that A30 is from Basic Education and only shows teaching. She agreed that the difference between North West and Gauteng does not make sense. She agreed that A30 indicate that Phiri resigned in 2011 but his CV states that he was employed at Diepsloot- Gauteng. To the notion that Phiri might have lied, Tlhako stated that she hears it for the first time that Phiri was employed in Gauteng and the North West at the same time but did not have A30 when they compiled the CV’s. To the notion that Phiri lied about his managerial experience, Tlhako responded that there are rumours out there. She was not aware of the rumour that the Applicant stole the box containing the documents about the post. She agreed that the box was held at the HR office at the Mahikeng campus whilst the Applicant works at the Lehurutse campus which is around 90km from each other.
46. She became aware of the investigation report (on R2) when the Deputy Principle requested the documents to answer the Applicant about his enquiry why he was not shortlisted. She agreed that the Applicant wrote to the Respondent on the 25th of November 2021 and the response was on the 7th of December 2021. She agreed that the documents were there when the Deputy responded to the Applicant’s grievance because they could give the Deputy the Applicant’s CV. After the response to the Applicant’s grievance, the box went missing. She agreed that the box with the recruitment file was still there in 2022. Referring to the disclosure of information on R (2) page 7 paragraphs 5.4 and 5.5 after a ruling on the disclosure of information when Mophaki requested information, the file could not be found by the HR personnel. Tlhako agreed that the directive from Commissioner D Smith on A 25-27 for the disclosure of information is dated 15 May 2023.

SUBMISSIONS IN ARGUMENT

47. Both parties agreed to submit arguments in writing. The submissions of were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself. Noteworthy is that both parties’ submissions included much jurisprudence. Heads of Argument with cases especially if they are properly cross referenced. Within labour law, Commissioners are consumers of law and the representatives are the sellers of law. If you want to sell the law, you must package it correctly, make it desirable and display its best qualities. As a salesman of the law, respect your consumer and give them what they want.

ANALYSIS OF EVIDENCE AND ARGUMENT

48. ELRC Collective Agreement 3 of 2016 (ELRC Guidelines: Promotion Arbitration). Paragraph 33 of this collective agreement states that: 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 unfair labour 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.
49. The Applicant’s demeanor reflected earnestness and only stated what he knew and willing to make concessions detrimental to his case. Lekoma also stated what she knew. The second Respondent was evasive and was not willing to make concessions detrimental to his case also blaming the Respondent. The second Respondent’s submission that the Applicant could not have been shortlisted because of his nationality being a foreigner, is far reaching after the second Respondent conceded that the Applicant is a naturalized citizen with same rights as him and not able to direct to any legislation or policy that justifies such view. Tlhako who testified as a witness for the second Respondent, contradicted herself during cross-examination but were willing to make concessions which assisted the dispute holistically.
50. It is common cause that the first Respondent advertised the Campus Manager Post (Level 5) of which the minimum requirements were stated as follows: An appropriate National Diploma/Degree in education or equivalent qualification with a minimum of REQV 13. Seven years teaching experience with a minimum of three years with a minimum of three years’ experience at the management level. Registered with SACE. Sound communication skills. Computer Literacy. A valid driver’s license. It is common cause that the Applicant submitted PERSAL evidence which the second Respondent opposed not to be authentic. It is common cause that the second Respondent was appointed in the position of Campus Manager. It is common cause that the recruitment information pertaining to this appointment got lost and was investigated.

Whether the Applicant did meet the minimum requirements of the post as advertised, and secondly, whether he was supposed to be shortlisted by comparing the Applicant with those who were shortlisted (Manamela and the second Respondent).

51. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT the Court emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the employee to demonstrate that the failure to promote was unfair, the employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.
52. It is submitted by the Applicant that the Respondent’s conduct, in failing to comply with the applicable provisions in appointing the second Respondent, who was not the most suitable candidate, and its non-compliance with its own requirements, amount to conduct that denied the Applicant a fair opportunity to be shortlisted and further participation in the recruitment process. In Letsogo v Department of Economy and Enterprise Development and Others (JR350/16) [2018] ZALCJHB]; (2018) 39 ILJ 851 (LC) (9 January 2018), the Labour Court held that a selection panel does not have the authority to unilaterally change the advertised requirements for a position. Such requirements can only be changed by the relevant executive authority, typically the Minister, who must provide a legal basis and justification for any deviation. The Court found that the panel’s act of changing the requirements to allow a candidate who did not meet the original criteria to be shortlisted, interviewed, and promoted was unlawful and unfair. The arbitrator’s failure to address this fundamental issue resulted in the award being set aside. Furthermore, a candidate who does not meet the advertised qualifications has no right to apply or participate in the selection process. This case underscores the strict adherence required to the advertised job criteria in recruitment and promotion processes.
53. The second Respondent’s argument was the same and that the Applicant is a foreign national and that was the reason the Applicant was not shortlisted for the post, also failed. Tlhako referred to the CV of the Applicant on A34, stating that it is written on top – no TVET experience which was the reason for not shortlisting the Applicant. Tlhako confirmed that it was not about the CV not been updated, but about no TVET experience.

Comparing with Manamela –

54. In this instance the Applicant asserts he met and exceeded the advertised minimum requirements for the Campus Manager post, including holding a Master’s degree in Education, over 20 years teaching experience with 12 years’ managerial experience, registration with SACE, computer literacy, and a valid driver’s license. The shortlisting process included candidates who did not meet the advertised criteria, such as Manamela (with a Master’s in Project Management, not Education). Tlhako was referred to summary of Manamela’s experience to the Director-General of DHET and confirmed that had no teaching experience (on R (3) page 5).
55. Tlhako assisted herein conceding during cross-examination after she contradicted her evidence in chief, that Manamela did not meet the minimum requirements for the post, which is a minimum requirement and that Manamela did not qualify to be shortlisted. Tlhako testified that Manamela’s qualification, which is a Master’s of Science in Project Management, captured in the long list is not in line with the advert because it is not in education. In this instance, the panel shortlisted a person who did not meet the requirement of the post as per the advertisement which was clear that an applicant must have ‘an appropriate National Diploma/Degree in education or equivalent qualification with a minimum of REQV 13. Manamela’s qualification was not in line with the requirement. Manamela did not meet the minimum requirements of the post, was shortlisted in relation to the Applicant who met these requirements as discussed below. This conduct by the Respondent created much doubt of the recruitment and selection processes and unfair treatment onto the Applicant.

Comparing with the second Respondent –

56. In relation to the second Respondent, who allegedly lacked the required managerial experience and had inconsistencies in his employment record comparing his CV and the PERSAL information. Tlhako agreed that the panel used the second Respondent’s school-based management experience to shortlist him (see R (1) page 52). The second Respondent had only 3 years of experience in relation to the Applicant who was on management level since 2010 (see R (1) page 20). Tlhako led evidence that the reason the Applicant was not shortlisted, was because he did not have TVET experience and it was recorded on his curriculum vitae (see A page 37) which clarifies the actual reason the Applicant was not shortlisted. The panel eliminated the Applicant because he did not have TVET experience albeit this was not the requirement of the post as advertised.
57. During cross-examination, Tlhako could not recall TVET experience not being a requirement and referred to the advertisement which shows it was not and even if it was, the Applicant would still qualify because he indicated in his curriculum vitae that he was Head of Department (Taletso TVET College, Fundamentals/Engineering Studies) (on R (1) page 20). He would have been considered more than the second Respondent because he was in TVET management and the second Respondent was just a Lecturer. Tlhako testified that she and Matokong prepared the schedule of applicants or the long list (see A, page 53). She testified further that as HR, they agreed that the Applicant met the requirements of the post as advertised. She agreed that the contents captured in this long list were transported from the curriculum vitae as they appeared.
58. According to HR, the Applicant had three years’ managerial experience which appear to be an issue because of what was written on top of the Applicant’s CV – no TVET experience. The irony herein is that the Respondent contest the Applicant’s managerial experience when HR “longlisted” that the Applicant having teaching experience and the required managerial experience. The panel eliminated the Applicant because he did not have TVET experience albeit this was not the requirement of the post as advertised but shortlisted the second Respondent using school-based management experience (see R (1) page 52). It is unclear why the panel would shortlist the second Respondent with his school-based management experience but refuse to shortlist the Applicant with his TVET experience as an HOD. Should the panel have concentrated on management experience only, the second Respondent had only three years of experience with the Applicant who was on management level since 2010 (see R (1) page 20)
59. Evidence shows that the Applicant possessed a Master of Education (Mathematics/Science Education) while the second Respondent possessed mere Advanced Certificate in Education. During the shortlisting process on 5 November 2021, the Applicant was Head of Department (Fundamentals/Engineering Studies) (on R (1) page 20). This was a TVET experience at management level whilst the second Respondent was just a Lecturer (on R (1) page 52). The Applicant did meet the minimum requirements of the post as advertised, and was supposed to be shortlisted by comparing the Applicant with those who were shortlisted (Manamela and the second Respondent).

The Z83 form –

60. For Phiri, the Applicant is a foreigner which was raised with the previous commissioner in that the Z83 form was wrong effectively allowing foreigners to apply. The Applicant denied the second Respondent’s averment that the Z83 was not applicable anymore being outdated referring to a Circular of 2021. This, the second Respondent premised on the Applicant being a foreigner in that for the Applicant was not supposed to be shortlisted or then to be appointed, which relates to equity in South Africa and that South African citizens must be afforded the chance to be appointed and the Respondent wanted an applicant to be a legal citizen. For the second Respondent, the position of campus manager is not a scarce skill and equity allowed the second Respondent an advantage over the Applicant. The second Respondent also stated that South Africa cannot compensate a foreign national who had a chance to be an educator and not a HOD which is unfair towards South African Nationals.
61. Bearing in mind that relevant information pertaining to the recruitment process of this appointment is lost, the Applicant referred to the application and the shortlisting meeting (on A12) considering the Z83 form which directs that the Applicant did submit a Z83. With reference to the Applicant’s curriculum and the Z83, that the committee did not indicate any TVET experience for the Applicant, I view it as an oversight because the Applicant’s curriculum talks about his experience. Such notion corresponds with Tlhako’s version that when they longlisted draw the information form the curriculums which she conceded that Applicant complied with and qualified to be shortlisted. The Applicant complied with the advertisement and the Z83 form.
62. For the Applicant, the Respondent failed to verify the information submitted by the second Respondent which reflects on the second Respondent’s Z83 with the information on the PERSAL system. The Applicant’s contention is that the second Respondent was dishonest in his curriculum vitae when he stated that he was Head of Department in Diepsloot Secondary 3 (see R (1) page 52). This information is also reflected in the second Respondent’s Z83 application form (see R (1) page 50). The PERSAL printout indicates that between 2008 and 2011 the second Respondent was an employee in the North West Department of Education and not in Gauteng Education Department as he claims in his curriculum and the Z83-form (see A page 30-33). According to the PERSAL printouts, the second Respondent was a PL1 Educator attached to Boitseanape Secondary School, in the Ngaka Modiri Molema District between 2008 to 2011.
63. Lekoma corroborated the Applicant’s version that the second Respondent was between 2008 and 2011 an employee of the North West Department of Education and could not have been in Gauteng Province. Tlhako also corroborated the contents of these PERSAL printouts. She argued that even though she does not work in Basic Education, but the printouts were legitimate. Tlhako agreed that the difference between North West and Gauteng does not make sense. Tlhako also agreed that A30 indicate that the second Respondent resigned in 2011 but his CV states that he was employed at Diepsloot- Gauteng. Tlhako failed to respond to the notion that the second Respondent might have lied and stated that she hears it for the first time that the second Respondent was employed in Gauteng and the North West at the same time but did not have A30 when they compiled the CV’s.

The authenticity of the PERSAL printouts –

64. The reason for the second Respondent’s decision to have reopened his case was because he wanted Tlhako to rebut PERSAL information submitted by the Applicant. During examination-in-chief, the second Respondent failed to question Tlhako about his application (the Z83) and his curriculum vitae. It was the Applicant who, during cross-examination, led the witness on that. Tlhako did not contest the PERSAL extracts that were exposing the second Respondent’s employment with the North West Department of Education as contained in the PERSAL extracts vis a vi the Z83 and his curriculum vitae. In relation to the PERSAL information on A30, Tlhako agreed to be exposed to such information confirming it to be from the PERSAL system serving to be a service record which was not before them when they complied the CV’s which is concerning to verify the service of any applicant applying for a post.
65. Lekoma who works as a HR control assistant since 26 July 1996 doing HR administration and the monitoring of the PERSAL system to capture appointments. Lekoma agreed that the PERSAL system may undergo changes but not disrupt the information that changed on the system. She did not agree with the notion that due to the changes on PERSAL in 1996 some employees who left early 2000 are not on PERSAL, responding that the system archive will show the information. Lekoma agreed to the notion that if an employee leaves the Gauteng Province to another province, it would show on PERSAL. The Respondent’s notion that if the second Respondent would fetch the file from Gauteng, it would contradict her version, Lekoma responded that PERSAL shows the school at Boitseanepe which derives from the file they have with them and the attendance registers can show it. The second Respondent never adduced a PERSAL printout to support this notion for the Respondent in rebuttal of the PERSAL extracts. In relation to the authenticity of the PERSAL print outs, Lekoma stated that she works with such information daily and is assured that it is PERSAL print outs strengthening the authenticity of it.
66. The second Respondent did not rebut this contradiction between what he stated in the Z83 and his CV between 2008 and 2011, that he was in Gauteng Department of Education in relation to what is captured on his service record on the PERSAL extracts. The second Respondent’s argument about the authenticity failed and also that the Applicant has a duty to discharge proof. The second Respondent had ample opportunity to obtain and present evidence to rebut such allegation but decided to either remain silent when the PERSAL extracts was dealt with or to hold the position that it was not authenticated arguing that the Applicant failed to prove that he was not an HOD in the Diepsloot Secondary School.

The application of the second Respondent was submitted after the closing date –

67. The Z83 application form in the South African public service requires applicants to submit a fully completed form together with a detailed CV and certified copies of all relevant qualifications, an identity document, and, if applicable, a driver’s license. All these documents must be submitted by the closing date stated in the job advertisement. Late submissions of essential supporting documentation typically result in disqualification as they violate procedural fairness and the advertisement’s terms. While the employer may verify receipt and allow some procedural flexibility (such as requesting certified copies after shortlisting but before appointment), the primary documents substantiating the application should be submitted by the closing deadline. Any discretionary acceptance of late documents must be reasonable, transparent, and applied consistently to avoid unfair practices or bias.
68. Referring to the application of the second Respondent, the shortlisting was done on 5 November 2021 although the second Respondent submitted his curriculum – qualifications on the 13 of October 2022 after the shortlisting process. The date stamp shows 13 October 2022 hence the qualifications were not submitted with the curriculum vitae. The appointment was done on the 17th of October 2022, 4-days before the second Respondent submitted his qualifications and could not have been shortlisted. Referring to R14 – the general instructions when submitting an application on Z83 is that when a curriculum is submitted, certified copies of all qualifications, identity document and driver’s license must be submitted.
69. The second Respondent denied that his application and supporting documents were submitted after the closing date of 10 September 2021. He acknowledged that the documents dated 2022 were the same he used for the application but explained that the original documents were lost. Consequently, he requested the Department of Higher Education to provide certified copies to support his employment, which were later submitted. The second Respondent maintained that the late submission of certified documents was an administrative error caused by Mophaki, who compiled the bundles, and asserted that he was not at fault. When questioned about the date stamps showing submission after the closing date, he refrained from responding initially but later acknowledged the date stamp was indeed after the deadline. He also indicated the original documents had been submitted to HR before the closing date as annexure B. The second Respondent’s claim is that the supporting documents’ late submission was due to lost originals and administrative errors, not intentional delay, while the formal application with necessary documentation was made timeously through HR records which contradicts Thlako.
70. Tlhako, explained that after a letter of appointment is issued to the successful candidate, the candidate is required to accept the appointment in writing and submit certified copies of relevant documents within the same month. She communicated with the successful candidate to submit newly certified copies around the time the acceptance letter was sent, which she recalls was towards the end of the year, approximately near the certified date on the Senior Certificate (13 October 2022). She agreed that the request for these certified copies coincided with this period which in my view cannot reflect a standard procedure where document verification follow after the appointment letter is issued.
71. The second Respondent’s certified qualifications were submitted after the shortlisting and appointment dates as evidenced by the date stamp of October 13, 2022—substantially after the closing date in September 2021 and after the appointment date of 17 October 2022. The Respondent’s explanation that the delay was due to lost documents and an administrative error does not negate that the process formally accepted late documents post-shortlisting. Therefore, legally, this late submission contradicts the advertised requirements under the Z83 application regulations and undermines the validity of the second Respondent’s shortlisting and appointment.

AWARD

70. The ELRC Collective Agreement 3 of 2016 (Promotion Arbitration Guidelines) provides that in a promotion dispute, an applicant who cannot prove he or she was the best candidate must at least show that there was unfair conduct. This includes denial of a fair opportunity to compete, arbitrary or unacceptable motivation, or that the successful candidate was dishonest and misled the interview panel or employer.
71. In the pre-arbitration minute, it was not an issue to decide whether the Applicant was the best candidate. In the current dispute, the Applicant showed he met or exceeded the advertised minimum requirements for the Campus Manager post, including appropriate qualifications, managerial experience, and registration with SACE. Evidence indicated that some shortlisted candidates, including the second Respondent and Manamela, did not fully meet the requirements, but to the extent in dealing with procedural fairness. In the Applicant’s closing arguments, he prayed that the Commissioner use his discretion given by section 193(4) of the Labour Relations Act (1995), and order compensation. Section 193(4) of the Labour Relations Act (1995) as amended empowers the Commissioner to order compensation. This provision is further amplified in paragraph 63 of ELRC Collective Agreement 3 0f 2016 (ELRC Guidelines: Promotion Arbitration) which states that: When awarding compensation for substantive unfairness in cases where the arbitrator is of the view that the applicant was the best of all the candidates who applied for the post, the maximum amount of compensation that may be awarded is the equivalent of 12 month’s remuneration, calculated at the remuneration of the job in which the applicant was employed when the unfairness was committed and not the remuneration attached to the promotional position for which the employee has applied. Parties agreed in their pre-arbitration minute the commissioner to decide whether the Applicant met the minimum requirements of the post as advertised which the Applicant did, and secondly, whether the Applicant was supposed to be shortlisted, which I also determined that the Applicant was supposed to be shortlisted.
72. The parties to this dispute agreed unequivocally to place the following in dispute: The Applicant qualified to be shortlisted; some of the shortlisted candidates, including the appointed candidate (the second Respondent), did not qualify to be shortlisted (Manamela and the second Respondent); the application of the second Respondent was submitted after the closing date; the Applicant was disqualified for failing to complete the Z83 and the Applicant did not update his CV. In the absence to make a determination whether the Applicant was the best candidate, I cannot entertain compensation.
73. In the premise, the Applicant, Mr. Anthony Tweneboah-Koduah is successful in discharging proof that he was unfairly treated by the Respondent having met the minimum requirements post, and was unfairly excluded from being shortlisted. The Respondent conducted the recruitment process unfairly. The relief sought in the pre-arbitration minute under 2.23, for the appointment to be set aside and the process to start afresh, is granted.

S Fourie

ELRC ARBITRATOR
17 November 2025