18 August 2025 -ELRC40-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIRTUALLY

CASE NO.: ELRC 40-25/26GP

In the matter between: –

N.B. MOTLHAKE APPLICANT
and

DEPARTMENT OF EDUCATION- GAUTENG 1ST RESPONDENT
BP MCHUNU 2ND RESPONDENT

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 01 July and 16 July 2025
CLOSING ARGUMENTS: 23 July 2025
DATE OF AWARD: 11 August 2025

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

A virtual arbitration was held on 01 July and 16 July 2025, respectively. Mr. J.S. Mamabolo, a SADTU union official, represented the applicant. Mr G. Mbonde, its Senior Education Specialist, represented the respondent. The second respondent, Mr B.P Mchunu, attended the proceedings.
I recorded the proceedings digitally. The parties were granted indulgence to submit their closing arguments by 23 July 2025.
ISSUE TO BE DECIDED
I am required to decide whether the respondent’s failure to appoint the applicant to the position of Departmental Head (HOD) Accounting, Economics & Business Studies grade 10-12 constitutes unfair labour practice. Substantively, I must determine if she is the most suitable candidate for the position. Procedurally, i.e., if it was unfair to subject the applicant to an assessment test, and if the principal and the deputy principal influenced the panel not to shortlist her for the post.
Should I find in favour of the applicant, I will further determine the appropriate relief. The applicant seeks that the appointment of the second respondent be overturned and that she be appointed to the disputed position. SURVEY OF EVIDENCE AND ARGUMENTS Common cause issues
The parties agreed to the following factors as being the common cause: –
5.1 The applicant applied for the advertised post of HOD, Economics & Business Studies Grade 10-12 (TW 24ED1145) for Tsibogo Secondary School.
5.2 She was shortlisted and interviewed for the post.
5.3 According to the School Governing Body’s (“SGB”) recommendation and preference order, the candidates were ranked as follows:
Mr Mchunu, the second respondent
Mr Mogaramedi;
Ms Motlhake, the applicant
5.4 The applicant and the second respondent met the minimum requirements for the post.
5.5 The post requirements were 3 years of teaching experience and relevant qualifications.
5.6 It is the SGB that makes recommendations to the 1st respondent for appointment to the vacant post. In terms of the Collective Agreement No. 1 of 2021 (“CA”), the SGB must submit at least three names to the 1st respondent for possible appointment.
5.7 All candidates were subjected to a written assessment test during the interviews.
Ntebaleng Motlhake testified that she is a PL1 educator. She received a call from a colleague, Ms Moemi, on 3 July 2024. Ms Moemi informed her that the SGB chairperson, Ms. Mashishi, wanted to share with her about the selection process irregularities. She communicated with Mashishi, who informed her that the Deputy Principal did not want to shortlist her. The Department`s representative, Mr Bronkhorst, insisted that she be shortlisted. The principal and the Deputy Principal stated that she lacked experience. She had been acting in the post for 12 months.
The deputy principal chaired the interview process, and the principal was a resource person. She was subjected to an accounting assessment test during the interviews without prior notice. What Mashishi informed her threw her off balance, which affected her performance in the interview.
She used to have a good relationship with the principal, which later soured. The other candidates were notified about the assessment prior. Mchunu is a close friend of the deputy principal who failed to declare. Their relationship constitutes a conflict of interest. The requirements for the post, as advertised, were in contravention of what the SMT profiled.
During the cross-examination, she said she complained about the advert to the SADTU Secretary, Mr. Mkhwanazi, who informed her to apply and that he would handle all other issues. She conceded that HOD is regarded as a curriculum expert in that subject. However, the accounting assessment test caught her off guard.
There was no explanation for selecting only accounting out of the 3 subjects in the BLM curriculum for assessment. She was disadvantaged, as she did not know the scope of the test. She heard that the Deputy Principal gave the other candidates a scope of the test.
The deputy and principal were against her. Had it not been for Bronkhorst, she might not have been shortlisted. She informed Mkwanazi about these irregularities, but he was not part of the interviews.
She conceded that the principal is the accounting officer of the school, vested with the final decision-making in terms of the curriculum needs of the school. However, he should involve the SMT collectively in the decision. If she were given a fair chance, she could have performed the best, as the interview panel remarked on R25. She admitted that the respondent in the decision to appoint any of the three shortlisted candidates is not influenced by the principal, but the decision is independent.
Ouma Andronica Mashishi testified that she is the SGB Chairperson of the school. She requested Ms Moemi to request the applicant to phone her. She did not have the power to lodge a grievance, so she wanted the applicant to do so after she realized the irregularities. She was a whistleblower.
During the shortlisting, the principal indicated that the applicant lacked experience and FET qualification. Bronkhorst insisted that she be shortlisted because she was acting in the position and should be automatically shortlisted.
After shortlisting five candidates, the deputy principal indicated that Mchunu was her favorite and ideal candidate because he produced excellent results. She brandished his documents and said, “This is our person to be appointed”.
She has been involved with the SGB and recruitment process for 10 years. She is aware of the confidentiality clause that she had signed. However, this does not prevent her from reporting irregularities. She becomes an accomplice if she fails to report.
During cross-examination, she stated that she signed the confidentiality clause as a commitment not to divulge or disclose the panel discussions. She did not alert the union observer of the irregularities. She did not raise the irregularities even at the ratification process because the SGB is always overlocked. She was not wrong to disclose the irregularities.
She formed part of the decision taken for the writing of the assessment tests. She could not report the irregularities to the IDOS of the school because only the candidates can do that. Based on the applicant’s interview performance as stated by the panel on R26 3.4, she did not stand a chance for an appointment. She formed part of the panel that scored the applicant number 3. The deputy principal brandished Mchunu ‘s documents that he was the best candidate, as he produced good results.
Nchabeleng Joey Molaodi testified that he is the principal of the school and was a resource person in the interview. He ensured that the process ran well. He denied that he influenced the panel not to shortlist the applicant. The union observer present did not raise any irregularities.
He denied that Molefe brandished documents about Mchunu; it would have been risky to do so in the presence of the Union, SGB, education specialists, department representative, and the panel at large. He executed all the functions of the resource person as required by 8.2 of the ELRC Collective Agreement, No 1 of 2021. There was neither bias nor irregularity that occurred during the process.
All candidates were subjected to the assessment test for Accounting, EMS, and Business Studies. The school was migrating to FET (Grade 10-12) from 2024. They required an HOD post with FET level experience and discussed this in the SMT meeting during the profiling of the post.
During cross-examination, he stated that the post was profiled for BCM HOD only. She denied that LO and Creative Arts were part of the post profile. The two subjects are stand alone. Mchunu was appointed the HOD for BCM and not inclusive of LO, and Creative Arts. The school does not have an HOD for LO and Creative Arts.
He denied engaging the Union site Steward before the interviews and that the Site Steward raised any issue. She has a normal working relationship with the applicant. He denied influencing the panel not to shortlist the applicant. The applicant was shortlisted and recommended. He denied that Bronkhorst insisted that the applicant be shortlisted and that Bronkhorst brought the ready-made questions to the interview. The questions were discussed and formulated in the meeting on the interview day.
Jan Bronkhorst testified that he is a FET Grade 10-12 Accounting Subject Specialist. He was a member of the interview panel. He denied that Molaodi and Molefe unduly influenced the panel not to shortlist the applicant. The panel shortlisted the applicant.
The SADTU observer was present; he could have lodged a grievance if there had been irregularities. All candidates wrote assessment tests for the three subjects. The purpose was to test their knowledge and understanding of the subjects accounting, business studies, and Economics. He denied that she brought the prepared questions to the interview venue. The questions were discussed and formulated in the meeting before the interview began.
During cross-examination, he stated that Mchunu is one of the Grade 12 educators under his wing. Their relationship ends there. He oversees 54 schools. The candidates were not informed about the assessment test. He denied formulating questions alone and bringing them ready-made to the interview.
Martha Molefe testified that she is the Deputy Principal, and she chaired the interviews. She denied that she had unduly influenced the panel not to shortlist the applicant. She could not have done that in the presence of the SGB, Principal, and SADTU representative. All candidates wrote assessment tests in three subjects. She has a good relationship with the applicant as an educator. The post was profiled during the SMT meeting.
During cross-examination, she stated that Mchunu is her former colleague for 8 years at Pelotona Secondary School. They are not friends. As a curriculum Head, she liaised with Mchunu and other educators for content areas in which she does not major, like accounting. She also liaised with the applicant most of the time when needed. Mchunu and other colleagues assisted them with more information for FET. She denied disregarding the applicant, picking and praising Mchunu.
She could not have done that in the presence of the Principal, SGB, SADTU observer, and the three subject specialists. Mashishi’s allegations are lies and unfounded. The questions were formulated in the presence of all, including the SADTU representative. CLOSING ARGUMENTS
The applicant’s representative sent an email purporting to be closing arguments a day after the deadline for submission. My directive for resubmission of proper closing arguments was in vain. He submitted that the interview chairperson and the resource person treated the applicant unfairly during the shortlisting process, which violated the CA. Their conduct dented the integrity of the selection process and caused emotional distress to her.
The respondent argued that her version that Mashishi informed her that Mr. Molaodi and Ms. Molefe did not want her to be shortlisted and influenced the Panel not to recommend her was unfounded. She was shortlisted and ranked the third highest. She was rebutted by the three witnesses of the Respondent, who testified that it was impossible to influence the Panel in the presence of Union observers.
1. Mr. Molaodi, as the Resource Person, was responsible for ensuring that all candidates were treated fairly. If there was undue influence on the Panel, union observers could have lodged a grievance. Mr. Bronkhorst testified that he could not risk his integrity and professionalism by engaging in unethical conduct, corroborating Mr. Molaodi and Ms. Molefe.
2. Mashishi’s testimony was full of contradictions and unsubstantiated claims. She testified that Ms. Molefe stated openly that Mr. Mchunu was a good teacher and was their candidate. This was not proven.
3. The respondent’s three witnesses refuted this claim as false. She stated that as an SGB member and Panel, she could not lodge a grievance, hence she informed the applicant of the irregularities so that she could lodge a grievance. This contradicted her testimony that she was familiar with the Confidentiality Form, and nowhere does it prevent her from reporting irregularities. She conceded that she did not report the alleged irregularities to the IDSO, SGB, or Union. The testimony of the respondent’s witnesses is that the interview questions were discussed in the presence of unions before the interviews.
The Supreme Court of Appeal in Stellenbosch Farmers Winery Group Ltd. And Another v, Martel et Cie and Others 2003 (1) SA 11 (SCA) at para 5 laid out the technique in establishing the probabilities, credibility, and reliability of the witnesses. Mashishi was not a credible and reliable witness because she contradicted herself.
In Provincial Administration Western Cape (Department of Health and Social Services) v Bikwani and others, the court held, “there is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process”.
In George v Liberty Life Association of Africa Ltd(1996) 17 ILJ 571 (IC), the court held that “an employer has a prerogative or wide discretion as to whom he or she will promote or transfer to another position. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this as an area where managerial prerogative should be respected unless bad faith or improper motive, such as discrimination, is present”.
Therefore, the 1st respondent’s decision to appoint the 2nd respondent was reasonable and should not be interfered with. The applicant failed to prove the act of unfair labour practice. The dispute should be dismissed. ANALYSIS OF EVIDENCE AND ARGUMENT
The applicant bears the onus to prove that the respondent committed an act of unfair labour practice when it did not appoint her to the HOD post at Tsibogo Secondary school.
In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC, the court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him/her. Meaning that the employee must not merely show that he/she was a suitable candidate for consideration, but that he/she was the best candidate.
41 The applicant`s contention that the HOD post was advertised contrary to how the SMT profiled it is not only a fallacy but also disingenuous. It is a common cause that the applicant and the other candidates applied for Economics & Business Studies Grade 10-12 (TW 24ED1145) for Tsibogo Secondary School. She was shortlisted, interviewed, and recommended as number three for this post. She now discredits the validity of the post she aimed to occupy, now that she is unsuccessful. She lacks the authority and power to establish and profile posts for the respondent. Furthermore, she could not have cried foul had she been appointed.

42 The Council’s jurisdiction is limited to determining the fairness of promotional appointments, i.e., if she was afforded a fair opportunity to compete for the post. It lacks jurisdiction to interfere with the establishment and profiling of the posts. It is the respondent`s prerogative to create posts that meet its needs. Therefore, I disregarded the evidence and argument captured supra, which sought my determination on the validity of the post.

43 The applicant’s claim of unfair procedure is twofold, i.e, during the shortlisting and interview process. During the shortlisting process, her claim is premised on Mashishi’s unsubstantiated allegations that the deputy principal and the principal were against her shortlisting. During the interview process, the alleged unfairness is derived from being subjected to an assessment test.

44 Mashishi proved not to be a credible and reliable witness. Her version is full of contradictions and not probable. Mashishi conceded having been involved with SGB matters for a decade and being conversant with the confidentiality form she signed. Armed with this fundamental knowledge, she decided to gossip about the recruitment process. It is a gossip because she acted irresponsibly by divulging the recruitment information to one of the candidates, contrary to the confidentiality form and CA.

45 Her actions were irresponsible, regardless of whether the information she leaked is truthful or not. The fact that she failed to prove these baseless allegations aggravates the situation. She was aware that her action would cause instability and discredit the integrity of the selection process, but acted, nevertheless. She did that despite the presence of the department representative and SADTU observer during the process.

46 The responsibility of the departmental representative, enshrined in clause 8.2 of the CA, amongst others, is to ensure that candidates are handled fairly procedurally and substantively, i.e, there is no bias, corruption, and fraud during the process. Additionally, to ensure that wrong decisions are pointed out to allow the interview committee to rectify and report such incorrect decisions to the authority if not corrected.

47 It is a common cause that Mashishi did not raise the allegations of bias and corruption for the committee to attend. Surprisingly, it was only Mashishi who observed the alleged irregularities out of everyone present. Considered in context, her failure to raise the alleged irregularities, but opting to take them to the street, and that she is the only one who observed the same, proves on the balance of probabilities that they did not occur.

48 If the chairperson and the resource person were conflicted, surely the departmental representative and the SADTU observer could have noticed the alleged irregularities. It is a common cause that the SADTU observer was present; if there were irregularities, a proper objection procedure in terms of clause 17.5 of CA could have been observed.

49 The applicant and Mashishi failed to explain why the SADTU observer did not lodge a grievance if indeed such shameful and glaring irregularities occurred under his watch. I accept that Mashishi is prohibited in terms of clause 17.3 of CA from lodging a grievance. However, I have explained above how she could have handled the irregularities with Bronkhorst if they were for real, considering her 10 years of experience in this field.

50 There were other people present during the shortlisting process. However, the applicant opted to rely only on Mashishi’s testimony. The court in the Bargaining Council for the Furniture Manufacturing Industry, Kwazulu-Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) held that an adverse inference should be drawn from a party’s failure to call a witness that the evidence that party faces must have been of such a nature that, at the time, the other party closing its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, the other party’s version was more probable than not.

51 The evidence from these people was important to clarify and support Mashishi regarding the alleged irregularity. The only conclusion I can draw from the failure to call these witnesses is the fear that their evidence would expose facts unfavourable to her case. The respondent called three witnesses who were present. They corroborated each witness without contradiction.

52 According to Mashishi, the deputy principal unduly influenced the panel not to shortlist the applicant; it was Bronkhorst who insisted on her shortlisting because it was automatic for her since she was acting in the position. Bronkhorst refuted such a claim and stated that the panel decided to shortlist her, not him. Molaodi and Molefe corroborated his version. Molefe denied that Mchunu was her friend. The applicant failed to prove the alleged friendship. Molefe’s relationship with Mchunu and the applicant is on an equal footing, i.e, former and current colleague, respectively.

53 It is common cause that she was shortlisted and recommended for the post. The applicant and Mashishi failed to explain why she was recommended despite Molaodi and Molefe’s animosity towards her. Clause 6 (f).1 of the Employment of Educators Act, read with clause 16.1 of the CA provides that, despite the order of preference of the candidates recommended by the SGB, the HOD may appoint any suitable candidate on the list. The applicant had the potential to be appointed to the post by virtue of being on the recommended list. Why would they risk this by recommending her if Mashishi’s assertions were true?

54 Unfortunately, the applicant believed and acted on these baseless allegations and claims that which caused her emotional stress, resulting in her poor interview performance. She must attribute the blame to herself for considering gossip and allowing Mashishi to play her.

55 The applicant was shortlisted and afforded a fair opportunity to compete with other candidates for the post. Therefore, I am persuaded that the applicant has failed to prove on the balance of probabilities that irregularities occurred during the shortlisting process.

56 The alleged irregularities during the interview process, i.e, assessment tests: It is common cause that all candidates were subjected to the assessment test for not only accounting but also economics and business studies. There is no dispute that the test was used to gauge their knowledge of the subjects. She was treated the same as other candidates, as they all wrote the test.

57 She failed to prove that the other candidates were forewarned about the test. The respondent’s witnesses refuted this. She conceded that it is the prerogative of the panel to test that they are experts in the subjects they intend to head. In addition to the interviews, the tests were tools to determine the appointment of the best candidate with the required expertise in the subjects.

58 Her assessment test performance in the course of the competition for the post proved her otherwise. However, she still made it to the top three following consideration of all relevant factors. She failed to prove on the balance of probabilities that it was unfair for the respondent to subject her and other candidates to an assessment test.

59 The Court in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), held that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions.

60 She conceded that the remarks by the interview panel relating to her performance were a true reflection. I have decided above that her justification is a fallacy. She neither proved that she was the most suitable candidate nor that Mchunu was not the most suitable candidate. The applicant failed to prove on the balance of probabilities substantive unfairness.

61 The applicant failed to prove that the decision taken by the respondent not to promote her was based on any of the negative factors mentioned in the City of Cape Town case supra. Furthermore, she failed to prove on the balance of probabilities that she was unfairly treated during the shortlisting and interview process, and that she was the most suitable candidate for the post. She did not challenge the respondent’s decision that Mchunu is the best candidate.

62 In the premises, the applicant failed to prove on the balance of probabilities that the respondent committed an act of unfair labour practice for not appointing her to the promotional post in dispute.

AWARD
I order that:

The respondent, the Department of Education-Gauteng, did not commit an act of unfair labour practice relating to promotion against the applicant, NB Motlhake.

The dispute is dismissed with no costs.

Signed and dated at Pretoria on 11 August 2025.