18 June 2026 – ELRC780-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC780-25/26EC

In the matter between

NAPTOSA obo HILES, MERLE & VILLET SUE-ANNE Applicant

and

THE DEPARTMENT OF EDUCATION: EASTERN CAPE First Respondent

TAMARA JAFTA Second Respondent

Arbitrator: Pumeza Ndabambi
Date of award: 18 June 2026

SUMMARY: Labour Relations Act 66 of 1995 – Unfair Labour Practice in terms of section 186(2)(a) – unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

This matter came before the Education Labour Relations Council (ELRC) for arbitration, in terms of section 191(5)(a)(v) of the Labour Relations Act 66, 1995, (the LRA). The arbitration was heard on 10 February 2026 and finalised on 27 May 2026, at the Respondent’s premises in Gqeberha (Ethel Valentine Building). The Applicant/s, Ms Merle Hiles and Villet Sue-Anne, were represented by Mr Anton Adams, an official of NAPTOSA, the First Respondent, the Eastern Cape Department of Education, was represented by Ms Annalie Slabbert and later Mr Sandiso Xhalisile, both Labour Relations Officers and the Second Respondent, Ms Tamara Jafta, was represented by Mr B. Stevens, from SADTU.
The parties agreed to submit written closing arguments by no later than 3 June 2026 and both parties complied.
The proceedings were electronically recorded

BACKGROUND TO THE ISSUES

The Applicants applied for a position of Departmental Head (PL-2) for Parkside Primary School in the Nelson Mandela Bay District. Ms Hiles was not shortlisted and invited for interviews, whilst Ms Villet was shortlisted and invited for the interviews. They were both not successful in their applications. The Applicants upon receiving the outcome after the interviews, referred a dispute to the ELRC of an unfair labour practice relating to promotion, in which he is challenging the following:
a. The fairness of the criteria by the shortlisting panel.
b. Whether the incumbent met the requirements of PAM and the Bulletin to be shortlisted and appointed
c. Whether the incumbent is the best candidate for the position.
d. Whether the environment of the interviews was intimidating for Ms Villet;
The Applicants pray for the appointment to be set aside and further and/or alternative relief.

SURVEY OF EVIDENCE AND ARGUMENT
Applicants’ Version

The version of the Applicants was led through the evidence of 2 witnesses and a bundle of documents;
The first witness, Ms Merle Hiles (the First Applicant) testified that she has 22 years of teaching experience.
She acted as Departmental Head when Ms Baartman was off. She conducted meetings, monitored question papers, Educators’ books,, did moderation duties, helped set up question papers, marks from recording sheets to SA-SAMS and did all the administration for Foundation Phase at Parkside Primary School. She collected all books, checked and signed to do a book report. She would deal with assessments and post on the recording sheets and compile a post-moderation report, check if all books are done and conduct meetings, capture minutes and distribute. She sat with Educators to guide them, helped with QMS and with Junior Phase teaching.
She was eliminated due to having no experience of SA-SAMS but she put recording sheets to SA-SAMS and the school has a clerk that dealt with SA-SAMS, although it does not appear as a requirement for the position. The Second Respondent did not know the criteria. She wants fairness in the process and wants compensation.
Ms Sue-Anne Villet (the Second Applicant) testified that she also applied for the position of Departmental Head and was shortlisted. She has 34 years teaching experience and had 3 years’ experience as Departmental Head. She notes that the Second Respondent said she had 14 years’ experience. The Second Respondent obtained her B-degree in 2021 and said she was a Post Level 1 Educator from 2023. She was a grade-R Practitioner. She therefore had less than 3 years’ experience and therefore misrepresented her years of experience and qualification.
The Second Applicant also testified that she felt intimidated during the interviews as the Resource Person (Principal) sighed during her interview and that made her nervous and get she was wasting her time. It seemed as if he had made up his mind and she was ranked No. 4. He had an influence in the ranking.
The Second Applicant testified that she was once part of interviews and they were workshopped and did not expect the behaviour displayed by the Resource person and no other person acted strangely. She wants compensation and does not want appointment to be set aside.

Respondent’s Version

The Respondent led the evidence of four witnesses, a bundle of documents. The evidence is summarised below:
Ms Tamara Jafta (the Second Respondent) testified that she applied for the Departmental Head position. She holds a BEd – Foundation Phase qualification that she completed in 2021. She read the subjects covered in her degree. She had to pass the practical of Teaching Practice, without which she could not pass and also Management. She also did Languages – English and Afrikaans, Religious Studies, amongst others. She did her practicals of Foundation Phase (Grades R,1,2,3). She did the Early Childhood Development (ECD) course in 2009-2010 with 3 months at each level and has a Level 4 certificate. She is Secretary of the SGB from 2023 to-date.
The Second Applicant confirmed that she did her practicals at Die Heuwel Primary School in Grades 1 to 3 from 2018 to 2021. She was a Grade-R Practitioner from 2014 to 2022 and in January 2021 did her Practical Teaching. She also did the CAPS training in 2012 which covered parent/teacher workshops. She does extra mural activities of Hockey under 11 and Spelling Bee. She is also in the Fundraising Committee involved in generating funds for the school. She also sources quotations for supply chain/procurement. The total years of teaching experience is 16 years and 14 years in Education.
Under cross-examination she confirmed that she started teaching at Die Heuwel Primary in 2011 and had no teaching qualification but had ECD. She confirmed the requirement of Collective Agreement 5/2003 that it talks to actual education experience gained in and out of public education. She confirmed that she was teaching although not a Post Level-1 Educator and agreed that ABET is not a formal teaching qualification. She further confirmed that she was appointed as a Post Level 1 Educator in 2023 and that PAM and the Bulletin require 3 years’ experience and the bulletin came out in June 2025. She agreed that she did not meet the 3 years’ experience requirement and did not indicate her SA-SAMS experience and she therefore did not meet that requirement.
Ms Charmaine Renga (Ms Renga) testified that she has been in Education for the past 10 years and has been in the SGB for one and a half years. She was trained as SGB member before the interviews. She was part of the shortlisting and interview panel. She presented the shortlisting minutes and shortlisting criteria. Candidates had to meet one of items on Criteria 4, i.e. Finance, Exposure to SA-SAMS and LTSM.
They sat as the panel in the shortlisting meeting with the Resource Person (Principal) and the unions. The First Applicant was eliminated in Round 4 of the shortlisting due to no SA-SAMS experience. She believes the criteria were fair. The unions were represented by Mr M. Felix for CTU-ATU and Mr B. Stevens for SADTU.
Under cross examination she confirmed that under the 4th criterion a candidate had to have 1 of the 3 set criteria. The Second Respondent had Finance experience, as per her CV as a developing generic skill. The First Applicant had established experience in Basic Financial Management but showed no exposure to SA-SAMS. The Second Respondent’s form also shows no SA-SAMS experience/exposure. She was shortlisted because she was fundraising for the school and denied that it was because she knew the Second Respondent. They had no question about Finance.
She confirmed that the position was advertised in 2025 and the Second Respondent was shortlisted because Grade – R is part of the Foundation Phase and subjects taught in Grades 1 to 3 are also taught in Grade-R, the Second Respondent therefore was performing the functions. She denied that they wanted to recommend the Second Respondent even though she also indicated no SA-SAMS experience and had developing Finance exposure, against the First Applicant who had 29 years’ experience in education and had established Basic Financial Management exposure. She further denied that the First Applicant was treated unfairly.
Ms Nokuphiwa Rwece (Ms Rwece) testified that when they sift they look at the bulletin and the EDP01 Form, experience and qualifications. If one meets the requirements of the advert they will go through. A Foundation Phase Educator must have 3 years’ experience. Grade-R Teachers came to Foundation Phase in 2026. When they calculate one’s years of experience, for example if one worked for 6 years and for 3 years she had no qualification they take the year that qualifies one to be an Educator. In the Second Respondent’s CV there is January 2018 to January 2021. She had Practical Teaching and she completed her BEd on 15 September 2021.
Under cross-examination she confirmed that she has been in HR from 2019. When looking at the Second Respondent’s CV it does not reflect 14 years’ experience and she may have misrepresented. They looked at the 14 years and the requirement for a Departmental Head is 3 years’ experience. If the Second Respondent started in January 2023 and up to 15 June 2025, the day of the bulletin, she does not have 3 years’ experience and does not meet the requirements. The Second Respondent counted ECD Practitioner years which they do not consider her as a qualified Educator.
Ms Rwece also testified that they consider Educator Assistants if they are on the system and utilised as educators. If the Second Respondent obtained her BEd in 2021 she may have been utilised as an Educator and may appear on PERSAL as ECD. She further confirmed that Grade-R started in 2026 and that the Second Respondent does not have 3 years Foundation Phase Permanent Teaching experience.
Mr Elroy Andre Swart (Mr Swart) testified that he is the Principal of Parkside Primary School and was the Resource Person in the recruitment in respect of Bulletin Vol 1/2025. The Second Applicant applied for the Departmental Head position and is not teaching at Parkside Primary School. He never insulted or threatened her in any way during the interviews. He does not recall himself sighing and does not believe that a sigh can threaten a candidate. He never interacted or socialised with any of the candidates. He also is not aware that there was any discomfort during the interviews. All questions were answered with no objections and no request for his recusal from the panel.
Under cross-examination he confirmed that he does not believe that a sigh, if he did, could influence a decision or intimidate a candidate and cannot recall that gesture. The unions were represented and the representatives could have raised that.

ANALYSIS OF EVIDENCE AND ARGUMENT

Section 185 of the LRA provides that every employee has a right not to be unfairly dismissed or subjected to unfair labour practices. This section gives effect to section 23 of the Constitution of the Republic of South Africa. The dispute referred is an unfair labour practice relating to promotion and the employee bears the onus of proof.
In this matter it is common cause that the Open Post Bulletin for Principals, Volume 1 of 2025 was issued on 15 June 2025 advertising vacant posts in the province. It is further common cause that the Applicants applied for the post of Departmental Head at Parkside Primary School. It is further common cause that the First Applicant was not shortlisted and the Second Applicant was shortlisted and invited for an interview for the post, with 4 other candidates. It is further common cause that the Second Applicant was not successful in her application, hence the present dispute.
The main contention of the First Applicant is that she was not shortlisted, unfairly so, when she met the criteria. The decision not to shortlist her was based on the fact that she had no SA-SAMS exposure but had established Basic Financial Management Skills and that the Second Respondent had Developing Finance Skills, also with no exposure to SA-SAMS. For the Second Applicant it is that she felt threatened in the interview by the Resource Person’s sigh during her interview as she understood it to say he was not interested and may have made up his mind about the appointment.
The second contention is that the Second Respondent did not meet the minimum requirements for the position in terms of the Bulletin in that she did not have 3 years’ experience as a permanent Post Level – 1 Educator. She was appointed in January 2023 and the post was advertised in June 2025, less than 3 years in the Post Level 1 position.
The issue for the First Applicant turns on the criteria set by the shortlisting panel, particularly criteria 4 that requires 3 other skills/experience and or exposure to Finance, SA-SAMS and LTSM. Both the First Applicant and the Second Respondent had Basic Financial Management skills, in fact the First Applicant had such skills at an ‘Established’ level whilst the Second Respondent had hers at ‘Developing’ level. That therefore put them on an equal footing with the First Applicant having leverage in terms of the level in the said skill.
The reason provided by the First Respondents’ witness is that she had no SA-SAMS experience, which the Second Respondent also did not have, according to their CVs and EDP01 Forms. They denied that they favoured the Second Respondent in any way save for that she had no SA-SAMS exposure. I therefore find that the shortlisting panel indeed unfairly did not shortlist the First Applicant whilst she was on an equal footing with the Second Respondent, having met the same criteria and minimum requirements for the position. The First Applicant had more years of teaching experience than the Second Respondent and that should have been advantageous to her.
In terms of the requirement for 3 years teaching experience, the Second Respondent commenced her employment with the First Respondent in January 2023 and at the time of the advert had two and a half years ‘experience as a permanent Post Level 1 Educator. According to the witness from HR they do not consider ECD experience, although the Second Respondent completed her qualification in 2021. Whilst she holds the required qualification, she did not meet the required 3 years’ experience as a permanent Post Level 1 Educator. There is also no other record on PERSAL that she was employed in another capacity by the First Respondent. She therefore, by her own admission, did not meet the requirement of 3 years and misrepresented in her CV and EDP01 Form.
In so far as the procedural deviations, PAM document outlines the following steps for recruitment and selection:
a. Vacancy identified
b. Advertisement
c. Sifting by the department
d. Shortlisting by Interview Committee
e. Interviews by Interview Committee
f. Recommendation by SGB
g. Appointment by HoD
In this matter all the stages outlined above were followed, but in terms of shortlisting the set criteria were unfairly applied in favour of the Second Respondent. Such a decision prejudiced the First Applicant and denied her of the opportunity to compete for the post as she was on advantage compared with the Second Respondent on the same financial skills.
The further issue of the Second Applicant of the Resource Person’s sigh during interviews, I find that it cannot really threaten a candidate as even Mr Swart does not recall the gesture. The Second Applicant was afforded an opportunity to compete for the position and if her case is not about anything in comparison with the Second Respondent, I must find that she was fairly treated and that she was not successful in her application as she was ranked No. 4 and further that she had no issues with the ranking or her performance in the interview. She also did not raise the issue of Mr Swart sighing as a matter that could have prejudiced her at the time of the interview.
In so far as the alleged unfairness by SGB of bias, it is clear from their inconsistent application of the set criteria that there was bias in favour of the Second Respondent. This is also shown by the fact that the shortlisting panel ignored the fact that the Second respondent was only appointed in 2023, even though she qualified in 2021. Collective Agreement 2 of 2025 confirms that the first intake of Grade – R practitioners commenced in 2026 and the Second Respondent qualified before this time and that she was already appointed based on her qualification. She is therefore not affected by the provisions of the Collective Agreement. The issue is that she was not a permanent employee of the First Respondent for three years and did not meet the requirements of the bulletin.
In Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC), the Court held at par 1462:
“It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.

The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing qualities of the two candidates. Provided a decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.

From the case cited above there is evidence that the decision to appoint the Second Respondent was not rational based on the inconsistent application of the criteria set by the shortlisting panel and for them to further overlook and not explain why the Second Respondent’s experience was accepted against the requirements in the Bulletin.
In Goliath v Medscheme (Pty) Ltd (1996) ILJ 760 (IC), it was held that it is quite possible that the assessment made of the candidates [by the employer] and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion. In this regard such mala fides have been identified in respect of the manner in which the First Applicant was treated.
In Noonan v SSSBC and others [2012] 56 ILJ (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity to compete for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint. In the case of the Second Applicant, I find that a mere gesture by the Resource Person of a sigh cannot render the process unfair as she was afforded an opportunity to compete for the post.
Having found that the Second Respondent did not meet the requirements of the bulletin and further that she was unfairly shortlisted on a criteria she and the First Applicant met, I must find that the First Respondent’s action of appointing the Second Respondent and prejudicing the First Applicant on shortlisting constitutes an unfair labour practice. There is no unfair labour practice committed against the Second Applicant. The First Respondent should have shortlisted the First Applicant.
In order to remedy the unfair labour practice the Applicant sought a remedy in terms of section 193(4) of the LRA, which provides that an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation.
In the circumstances I find that, consistent with the Applicant’s prayer that the appointment be set aside and the finding on appointment of the Second Respondent, having not met the requirements and also unfairly preferred whilst on an equal footing with the First Applicant, I find that in terms of section 194(4) of the LRA that the only reasonable term is to set aside the appointment and order the First Respondent to revert to shortlisting of the candidates and start the process afresh.
In the circumstances, I make the following award:

AWARD

The conduct of the First Respondent, Department of Education: Eastern Cape, in not shortlisting the First Applicant, Ms Merle Hiles, constitutes an unfair labour practice.
The appointment of the Second Respondent, Ms Tamara Jaftha, is set aside.
The First Respondent, Department of Education: Eastern Cape, is ordered to start the process afresh from shortlisting and is ordered to shortlist the First Applicant, Ms Hiles.
The First Respondent, Department of Education: Eastern Cape, committed no unfair labour practice in respect of the Second Applicant, Ms Sue-Anne Villet and as such she is not entitled to any relief.