18 March 2026 -ELRC841-25/26EC

ARBITRATION
AWARD

Case Number: ELRC841-25/26EC
Date: 16 March 2026

In the matter between

Zamuxolo Shedrick Maleki Applicant

and

Eastern Cape Department of Education First Respondent

Bukelwa Faith Gayoyo Second Respondent

DETAILS OF HEARING AND REPRESENTATION

This arbitration was held at Dr W.B. Rubusane District Offices in Mdantsane on 01 December 2025, 22 January 2026 and 28 February 2026.
Mr Zamuxolo Shedrick Maleki (applicant) was in attendance in all the sessions and appeared in person. The Eastern Cape Department of Education (1st respondent) was represented by its employee relations officer, Ms Annelie Brandt. Ms Bukelwa Faith Gayoyo (2nd respondent) appeared in person on 01 December 2025 and on the last day (28 February 2026). Mr Benny Sithembiso Cekiso (SADTU official) represented her only on 22 January 2026.
The dispute is about unfair labour practice related to promotion, in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). The applicant is alleging that the 1st respondent committed unfair labour practice when it did not shortlist him for deputy principal position of Nobotwe Primary School.
ISSUE TO BE DECIDED
I am required to determine whether unfair labour practice relating to promotion was committed when the 1st respondent did not shortlist the applicant for Nobotwe Primary School deputy principal position. His case is that not shortlisting him, while he deserved to be shortlisted, withheld him an opportunity to contest his candidature. I also have to make a determination on the allegation that his curriculum vitae (CV) document was removed from his application. If unfair labour practice is proven I will issue appropriate relief.
BACKGROUND TO THE ISSUE
This is a promotion dispute involving a deputy principal post at Nobotwe Primary School (a school in Buffalo City Metro District) which was advertised as post no 34 in Principal Bulletin volume 1 of 2025. The position is a post level 3 position and its gross commencing salary is R514 563.00 per annum.
The dispute arose on 16 October 2025, which is when the incumbent’s appointment to the position took effect.
The basis of the applicants’ unfair labour practice claim is that the process leading to the promotion of the 2nd respondent was procedurally flawed as he alleges that his CV was removed from his application and as a result of that he was withheld opportunity to contest his candidature. Had it not been for the removal of his CV he would have been shortlisted, got opportunity to sell himself in interview process.
The relief sought by the applicant is to have the appointment in the post reversed and the post recruitment process be started from scratch, or alternatively compensation
The respondents dispute that unfair labour practice was committed.
SURVEY OF THE EVIDENCE AND ARGUMENTS
It is common cause that the post requirements as reflected in the advert are, among others, all primary school subjects, management and leadership (Annexure A of principal bulletin volume 1 of 2025).
The applicant’s qualifications are Senior Primary Teachers Diploma, and B-Tech in School Management. He has experience as a departmental head and had 25 years’ teaching experience when he applied for the position.
The 2nd respondent was a departmental head at Cenyu Public School in Stutterheim when she applied for the deputy principal position. She also had 31 years’ teaching experience. Her highest qualification is Bachelor of Music Education. The other candidates who were shortlisted with her, their highest qualifications were as follows: candidate ranked number 2 had Advanced Certificate in Education (ACE); number 3 and 4 had Bachelor of Education (BED); number 5 and 6 had BED Honors.
APPLICANT’S CASE
Applicant
The applicant testified that when he inquired about the reason for not shortlisting him, he was told that there was no CV attached to his application. Attaching it was amongst the requirements for one’s application to be considered. In the master list next to his name there is a comment reading as follows: CV not attached, years of service not stated’ (page 17 of the 1st respondent’s bundle B). He disputes that his years of experience were not indicated. In his application form at paragraph 22 his years of experience as an educator are stated (page 18.1 of B).
The applicant testified further that in his CV there is indication that there were staples removed, and to him that indicates that there was a document which was removed and that document was his CV (pages 1, 2 and 3 of the applicant’s bundle A). This would have happened at the District Office, where he submitted his application.
The applicant heard also from Nobotwe’s principal that there had been application forms which were missing. The principal mentioned this after she had gone to collect the applications for purposes of conducting the shortlisting and interview process.
At cross examination the applicant denied any possibility of him forgetting to attach his CV or having mistakenly removed it. His hunch is that the CV was removed at the District Office, and not when the forms had been moved to the school. He has always had a normal working relationship with his principal. Furthermore, when he submitted his application no checks, and completion of checklist, were done as to whether all that was supposed to be submitted was in the document.
The applicant believes that had it not been for the removal of his CV he stood a good chance of making it to the shortlist. The applicant’s highest qualification is higher than that of candidate 2 with ACE. He also has B-Tech in School Management.
1ST RESPONDENT’S CASE
Ms Lulutho Mhobo
Ms Lulutho Mhobo (respondent’s human resources practitioner) testified that she is based at BCM District office, specifically at human resource recruitment and selection section.
With regards to the deputy principal’s post in question the witness testified that the district office recruitment section received applications from interested parties. Some were hand delivered, while others were couriered to the office. The first process she together with interns, who worked under permanent employees’ supervision, sat in an office and compiled a master list which captured all submitted applications. Thereafter, a sifting meeting was convened by the District’s deputy director for human resources, wherein union and the circuit manager under which the school is were called. In the sifting meeting applications, which did not meet the requirements set out in the advert, were sifted out. Such requirements, amongst others, included the attachment of one’s CV and mentioning of one’s teaching experience.
The applicant and other candidates’ name got to be sifted out because of not meeting the set requirements. The reasons for sifting out the applicant as stated in a spreadsheet developed at sifting meeting is that no CV was attached to his application and his years of teaching experience were not stated (page 17 of B, line 9). The witness acknowledged that they made a mistake with regards to the mentioning of years teaching, as such information was mentioned in his application form.
The witness further testified that they do not remove or attach any document when processing the application forms. The applicant’s CV was not removed by anyone during the processing of applications and there would have been no reason to do that. On the issue of the applicant’s application form having marks of removed staplers she testified that it was not unusual for application forms to have such marks because applying candidates would willy nilly remove and attach documents before submitting them.
After sifting process, the application forms were handed over to the school, through the circuit manager. The shortlisting and interview processes happened at the school.
The witness was asked about the contradiction between what is in the sifting spreadsheet (page 17 of B) and the shortlisting minutes. She acknowledged that in the shortlisting minutes there is indication that 17 applications were sent to the school, while in the shortlisting minutes it is reflected that there were 14 applications. Her testimony is that there might have been a mistake in capturing that data at school level.
Arguments
The applicant argued that he was unfairly treated as he would have been shortlisted had it not been for the removal of his CV from his application. There was also a discrepancy in number of applications handed over to the school versus what is appearing in the sifting spreadsheet. As an educator who had served for 14 years as a departmental head, he feels that he was withheld an opportunity to contest his candidature. The relief he is seeking is that the recruitment process be started from scratch or alternatively he be compensated.
The 1st respondent argued that it has been proven that there would have been no chances that the applicant’s CV got to be removed from his application. On issue of the applicant’s CV not being attached to the application it is possible that he might have forgotten to attach it. The processes at District level were stringently carried out in an environment where it would not have been possible for one’s CV to be removed. The applicant’s claim has not been proven, and his claim stands to be dismissed.
The 2nd respondent argued she did her best during the interviews and outshined even the second-best candidate. It would be unfair to her if her promotion would be reversed and processes be done from scratch.
ANALYSIS OF EVIDENCE AND ARGUMENTS
The applicant’s case is premised on the allegation that his CV was removed, hence he did not make it to the shortlist. If this allegation were to be proven that had it not been for the removal of his CV, he would have made it to the shortlist as he possesses better attributes than candidate 2. The onus to prove that it is most probable that his CV might have been removed rested with the applicant.
There is no direct evidence pointing to the removal of the applicant’s CV, and because of that circumstantial evidence is to be relied upon. With the onus of proof in labour law matters being that of balance of probabilities, what I am enjoined to do in dealing with circumstantial evidence is to choose the most reasonable inference that corresponds with the proven facts. In Mclead v Rens , the Court remarked as follows with regards to drawing of inference:
‘The proved facts should be such as to render the inference sought to be drawn more probable than any other reasonable inference. If they allow for another more or equally probable inference, the inference sought to be drawn cannot prevail.’
What needs to be established first is what facts have been proven from the evidence adduced from both sides, and then from those facts the drawing of an inference which is more probable than any other reasonable inference will be done.
In ascertaining which of the version is more probable the reliability and credibility of each version will be scrutinized according to the test adopted in Stellenbosch Farmers Winery Group Limited and Another v Martell et Cie and Others where the SCA held that:
‘On the central issue as to what the parties actually decided there are two irreconcilable versions, so too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarized as follows: To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities….in the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus succeeds in discharging it.
It will be from the facts proven, through the Stellenbosch Winery established criteria, that a more probable inference will be drawn.
The proven facts are that the applicant, together with other candidates submitted their application forms. At sifting stage, it was observed and indicated in the spreadsheet that there was no CV attached to his application. It was also mentioned in the spreadsheet that his years of experience was not reflected. Such was acknowledged by the 1st respondent to be a mistake. The dispute of facts centre around whether the applicant’s CV was removed from his application.
The applicant is saying that he attached his CV, and as testament to that the marks of removed staplers in his application points to the fact that there was a document that was in his application. The 1st respondent’s witness’ testimony is that she has seen a number of applications with removed staplers. She attributes this to candidates’ conduct removing and attaching documents in their applications. The applicant, on the other hand, is adamant that he did not remove any document from his application. She further testified that their working protocols do not allow for the adding or removal of any documents from candidates’ applications. Her team dealt with the applications in a carefully watched environment, and it could not have been possible for anyone to remove the applicant’s CV. It has also been proven that his years of experience were mistakenly not captured. There are also application forms, which were complete with regards to all that was required, which do not feature in the shortlisting minutes. There is mention of 14 applications in the shortlisting minutes, while there were 17 applications according to the sifting spreadsheet.
So, from the proven facts there exists a possibility that the applicant might have attached his CV as he says he did. In his application there are marks of removed staples. In the sifting spreadsheet it is mistakenly indicated that his years of experience were not included. Also, the applications sent to the school, in terms of the shortlisting minutes appear to have been 14 instead of 17 reflected in sifting spreadsheet. There are candidates whose applications were reflected as complete in the sifting spreadsheet but are not mentioned in the shortlisting minutes. The above mentioned facts shifts can be said to shift more to the probability of the CV being removed, even mistakenly so, than the other possibility that he could not have attached it.
In applying Mclead’s test the proven facts have pointed to the direction that the most probable inference to be drawn is that with so many glaring mistakes made in the process there exists a probability that the applicant’s CV might have been removed, even though the act might not have been deliberate. It was not deliberate that his years of experience were not mentioned. It was also not deliberate that there were candidates with complete applications but are not mentioned in the shortlisting minute. It has therefore been proven that the applicant was subjected to unfair labour practice when he did not make to the shortlist as a result of his CV having been removed and being said to have not mentioned his years of experience.
The relief sought is that the process be started from scratch or, alternatively he be compensated. In the case at hand substantive fairness has not been established, and only procedural unfairness was proved. It has not been proven that had he been shortlisted he would have been appointed. It has not been proven that the applicant has better attributes than the 2nd respondent. His case is that he was withheld an opportunity to contest his candidature. I would be reluctant to interfere with the respondent’s decision on the basis of procedural unfairness. The relief that I will go with in the circumstances is compensation, which should be a solatium for the hurt and prejudice which the applicant suffered. The non-inclusion of the applicant to the shortlist because of the removal of his CV withheld him an opportunity to contest his candidature, even if he would not have been the most performing candidate.
In considering an appropriate compensation consideration is made to Kwadukuza Municipality v SALGBC where R5 000.00 compensation was awarded for procedural unfairness in a promotion dispute. In Munsany v SSSBC and others the Labour Court held that R10 000.00 was fair compensation for serious procedural unfairness in a promotion dispute. R10 000.00 six years down the line from 2012 would be quite minimal in 2026. What I consider would be fair and equitable solatium in the circumstances is to award the applicant one month’s compensation. The applicant earns R31 939.50 per month.

AWARD

I therefore make the following award:
36.1. The 1st respondent, the Eastern Cape Department of Education, committed an unfair labour practice against the applicant, Zamuxolo Shedrick Maleki, as provided in section 186(2) of the LRA in that the respondent acted in a procedurally unfair manner in promotion processes for the post under challenge in this dispute.
36.2. The 1st respondent is ordered to pay the applicant solatium amounting to R31 939.50 by not later than 20 April 2026

Signature: