Panellist/s: Seretse Masete
Case No.: ELRC 905-25/26LP
Date of Award: 18 /03/2026

In the ARBITRATION between:

SADTU obo Poppy Florence Modipi

(Union / Applicant) And

Education Department of Limpopo

(Respondent)Union/Applicant’s representative: Tjia Mandla
Union/Applicant’s address:
Telephone:
Cell:

Respondent’s representative: Portia Modipa

Respondent’s address:
Telephone:
Cell:
2nd Respondent’s representative: Portia Modipa

Particulars of the proceedings and representation

1. The matter was held on 27 March 2026 at the employer’s premises in Burgersfort.
2. The Applicant, Poppy Florence Modipi, hereafter referred to as employee, was represented by Tjia Mandla, a union representative from SADTU, while the respondent, Education Department of Limpopo, hereafter referred to as employer, was represented by Portia Modipa.
3. The 2nd respondent, Napo Ramatsemela Dorothy, was also represented by Portia Modipa.
4. The proceedings were in English and digitally voice recorded.

Issues to be determined.

5. Whether or not the conduct of the employer by failing to promote the employee constituted an unfair labour practice.

Background and Nature of the dispute

6. The employee was employed as an educator 0n 18 March 2004 at Magabane Primary School within Tubatse Circuit, earning R39,516-25 per month at the time of the dispute.
7. The appointed candidate was allegedly less qualified with less managerial experience.
8. She believed the failure to promote her was an unfair labour practice and sought the matter to be relooked, and be double checked to determine who was actually the deserving candidate to be appointed.
9. The employer challenged the employee’s assertion citing that beside the qualifications and experience there are other factors to be looked into during the whole process of recruitment. Both candidates met the minimum requirements on the advert any way.
10. The employer submitted one bundle of documents marked R and called six witnesses. The employee testified as a sole witness and submitted no bundle of documents.
    Common issues. The employee was an educator, applied for the post, shortlisted but not appointed.
    Disputed issues. The appointed candidate had less managerial experience than the employee. The employee had better qualifications than the appointed candidate. The principal might have influenced the appointment of the 2nd candidate.

Survey of evidence by the employee party.
The employee, Poppy Florence Modipi, testified under oath as follows.

11. She has been with the respondent for 26 years of which 8 years was at Magabane primary school. Her qualifications were SPTD, Advance certificate in Mathematics, ACE in management, B.Ed in Education management, post graduate diploma in public management and Certificate in ICT, see page 197 to 209 of bundle R. She was serving as the departmental head (DH)at the current school. Her relationship with the principal was bad. The reason was that the principal claimed that the post of the DH which she won in 2018 was reserved for her. The 2nd respondent did not have management in education, but inclusive education, see page 88 to 94 of bundle R. She (2nd respondent) was only appointed in 2025 as a DH and later as deputy principal in September the same year which made it only 6 months management experience.
12. She had information from SADTU that a candidate cannot move from Cs1 to become a deputy principal (DP) but should have been appointed a permanent DH not six months managerial experience. She did not agree with the 5 years’ experience of actual teaching as set out in PAM (see page 3 of PAM extract). She challenged that the appointed candidate was promoted from DH to DP within six months. It was put to her that PAM did not prescribe the number of years as a DH, before one is appointed as a DP. she obtained position 5 in terms of page 226 of bundle R but the second respondent could not have obtained position one because that was impossible. She(2nd respondent) was just given marks, because she had no management experience. There were rumours that the second respondent got the post already even before the interviews, and there were celebrations to that effect. The person who was recommending candidates was the second respondent’s cousin. She denied that the second respondent met all the requirements as per the advert.
13. Her honours were more relevant than the second respondent’s. A person of eight years cannot be compared with a five years’ experience person. The 2nd respondent was never a DH before 2025 and she never studied anything concerning management. It should be the candidate with higher qualifications who should be preferred and not the candidates who can answer better in the interviews.

Survey of evidence by the employer party.
1st witness of the employer, Malatjie Mogase Sam, testified under oath as follows:

14. He was the chairperson of the shortlisting committee. During the shortlisting, the candidates were asked if they were free or had anything they wanted to raise, and no one raised any issue. All the five candidates on page 19 met the minimum requirements.
15. He was appointed a principal because he answered the questions correctly in the interviews and had relevant qualifications. The candidate who convinced the panel would be the one appointed. He could not answer the questions regarding the interviews in the current case because he was not a member thereof. The requirements for shortlisting did not indicate any managerial qualifications, but it said management knowledge. The person with more years in management, did not mean that he or she could be better than a person with less years of management experience, hence the candidates would be asked questions. He could not comment on the issue that the department wanted people to disregard high qualifications. It was put to him that he shortlisted Mashegwane without him having the management qualification, as per page 122 of bundle R. He denied.

2nd Witness, Maphake Makhalane Frank (Frank) testified under oath as follows:

16. He was the principal of Letau secondary school and he was the chairperson of the interviewing panel. They used the collective agreement (not submitted) when shortlisting. They also referred to PAM. All the candidates met the minimum requirements set on page 3 of the PAM extract. The employee obtained the lowest marks during the interviews. During the interviews, experience and qualifications were not considered, because those requirements are considered during the shortlisting. The employee actually performed very poor. As long as the candidates met the minimum requirements, they would be shortlisted. To be a deputy principal one needs to have a three-year diploma and five years of teaching experience. The employee could have been appointed had all the 1st, 2nd, 3rd and 4th candidate declined.
17. It was put to him that on page 19 of bundle R and on page 226 of the same bundle, the name of the employee appeared the last, which showed that there was an ulterior motive, and it could not have been a coincident. He answered by saying, that was just a coincident. It was put to him that the scoring of the employee was highly managed. He answered that by the way, only two ladies were shortlisted. During shortlisting, they considered REQV13 and five years’ experience. It was put to him that they had an ulterior motive when appointing the second respondent. He disagreed and cited that a teacher is, by her/his post, a manager, and management was not specified in the advert. There was a question on legislative frameworks and policies, because there was a dimension thereof. He denied that there was a question on inclusive education and denied that there was an ulterior motive. It was possible that a person with doctorate may be beaten by someone without a doctorate in the interviews. In shortlisting, they looked at REQV13 and the five years as per PAM. There was a dimension about management during the interviews. The 2nd respondent was a DH anyway.

3rd witness, Malepe Masesane Anastacia, testified under oath as follows;

18. She was working as an educator at Madikoloshe Malepe School. She was an observer representing PEU during the interviews. The panel just followed the procedures. The candidates were even asked if they felt comfortable and they affirmed. In her observation, the process was fair and there was no complaint after the short listing.
19. She was not a blood relative to the Principal of Magabane primary school. It was put to her that since she was not involved in the questioning, there was no questions for her.

4th witness, Raphasha Mahlako Leah testified under oath as follows;

20. She was employed at Nthame primary school and she was an observer representing SADTU. She did not see anything wrong during the shortlisting and no complaint was received and same applied to the interviews.
21. She did not see that there was anybody who was shortlisted without meeting the minimum qualifications. It was put to her that her duties were to assist the department to make sure that things go well. She did not comment.

5th witness, Malepe Phathlane Sany, testified under oath as follows;

22. The interviews took place on 4th September 2025 and the shortlisting took place in August 2025. He was a resource person then, to support the panel with logistical needs like making copies. He did not take part in either the shortlisting or the interviews. He never filed a court order but the employee was given a protection order on 13 June 2025 due to her threats. She (employee) knew 3 months in advance that she would be attending the interviews. He even did not know about the scoring. He knew about the person who got the post when the circuit called him to come and collect the appointment letter.
23. He was the departmental representative at the same time; hence he signed at the departmental representative portion. He was inside the interview room but he was not in direct contact with the process. He was not interfering with the process. He did not have any problem with the employee. The court order came because she confronted him by insulting him. The relationship was good because they were talking nicely to each other. There was no final written warning to the employee but just a written warning because of her conduct. She was fighting the educators and when reprimanded, she did not want to cooperate. After a written warning, her conduct was better. The written warning was issued on 13 June 2025. He went to court to apply for the order on 11 June 2025. It was put to him that his testimony was not correct. He responded that the relationship was good but she threatened to shoot him. He did not know who was the most experienced between the 2nd respondent and the employee. It was put to him that he was not telling the truth when he said that he did not know the experience of each. He answered that the employee refused to submit qualifications and she refused also to be allocated subjects. The employee served longer than the 2nd respondent in the management. It was put to him that he had an ulterior motive behind the whole process. He denied, citing that he did not have interest and he did not participate. On 10 June 2025 the employee complained about an educator. She started shouting at him and asked him as to whether he would not run had she have brought a gun to the office.
24. He mentioned that the relationship was good because they were talking to each other. He never interfered or participated in the interviews process.

6th witness, Phasha, Mamongato Sydwel , testified under oath as follows;

25. He was a deputy director corporate services in the department of education. His duties included recruitment of personnel. In terms of the outcomes of the interviews, the employee obtained the lowest score, see page 12 of bundle R. His role on the matter was merely quality assurance as per page 14 of bundle R, and he supported the recommendations. The employee and the 2nd responded, both met the minimum requirements. In terms of the PAM, see page 3 of the PAM Extract document, the deputy principal is required to have 5 years, experience plus the other requirements mentioned on that page of PAM.
26. Both parties were appointed as departmental heads (DH) but he was not sure who was appointed first. It was put to him that the 2nd respondent had only six months into the management field. He answered that his quality assurance involved only to check that, whoever was appointed, met the minimum requirements. The difference in experience did not affect or change the minimum requirements on the advert. Management, skills and qualifications, form the package for one to be a manager. He did not have a record that the 2nd respondent was acting for 15 years. There were no acting appointments in the department.
27. The 2nd respondent, Napo Ramatsemela Dorothy, chose to exercise her right of remaining silent, and the employee party’s representative indicated that they did not have any questions for her (2nd respondent).

Analysis of the evidence and arguments

28. Common issues. The employee was shortlisted and participated in the interviews. She obtained position five in the interviews. She had more experience as the DH than the 2nd respondent. The Head of Department(HOD) has already appointed another candidate (2nd respondent) in the disputed post.
29. The disputed Issues were: The 2nd respondent did not qualify to be promoted as she had less managerial experience compared to the employee. The principal might have influenced the outcomes since he disliked the employee and also had a court order against the employee.
30. It was the employee’s case that the 2nd respondent did not have necessary requirements for her to be promoted to the DP post because she (2nd respondent) did not have experience and qualifications in management. It was her version that the 2nd respondent only had about 6 months managerial experience because she only served 6 years as a DH just before she was promoted to become a DP. She further averred that the 2nd respondent was just scored with more marks because it was impossible for her (2nd respondent) to succeed in the interviews. The employer disputed these averments citing that the 2nd respondent met all the minimum requirements in terms of the advert and that she performed better in the interviews.
31. In terms of the advert, the requirements for the disputed post (DP) were set out on page 3 of the PAM extract. The requirements were mainly, 5 years teaching experience and the employee did not dispute that advert as the one which led to the appointment of the 2nd respondent and or the referred dispute. The 2nd respondent met all those requirements and that was corroborated by all the employer’s witnesses and supported by the documents produced. There was nowhere the advert talked about the number of years in management or a particular number of years as a DH as one of the minimum requirements. There was also nowhere the advert talked about qualifications in management. It was also not disputed that the SGB recommended the 2nd respondent for appointment. There was also no list of recommendations which showed that the employee was among the three recommended candidates for appointment. There was therefore no evidence that the 2nd respondent did not meet the minimum requirements. The fact that one candidate has more years of experience than the other candidates, does not mean that the one with lesser experience does not meet the minimum requirements, it depends on the requirements set on the advert. If one candidate has 10 years of experience and the other one has 6 years as an example, both of them meet the minimum requirements in terms of experience as long as the advert says 4 years, 5 years or 6 years of teaching experience. The advert in casu, did not single out a number of years in managerial experience, it only indicated teaching experience. My take on the balance of probabilities is therefore that the 2nd respondent met the minimum requirements in terms of the advert. She had more than 5 actual teaching experience, she had teacher’s qualifications, she had Bachelor of Education(honours), she was a DH. The advert did not specify a number of years candidates should have as a DH; it just said management experience. Both the 2nd respondent and the employee met the minimum requirements.
32. The argument that the principal (Malepe) of the school has influenced the decision by the panel, was not substantiated. There was no evidence to corroborate that he played part in the decision making by the panel and or the SGB. Malepe testified that he only served as a resource person because he was the employer’s representative. He was helping with logistical issues like making copies but never participated in the actual questioning and decision making. The employee did not produce any evidence to rebut Malepe’s version. His (Malepe) mere presence in the same room with the committee, does not prove anything. The employee further did not dispute with evidence, the version of Malepe that he even did not know about the scores of the candidates. He only came to know about the appointed person when he was called at the district office to go and collect the appointment letter. The employee initially presented that Malepe (the principal) planned to obstruct her preparations for the interviews by having sought a court order against her. Malepe, when testifying, indicated that he never filed a court order but the employee was given a protection order on 13 June 2025 due to her threats. The employee also did not dispute that she threatened one educator by saying would he run if she brought a gun. She (employee) knew 3 months in advance that she would be attending the interviews. The employee never contradicted that version by Malepe.
33. I agree with the case law, Pamplin v Western Cape Education and Others, that despite the onus being on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer is on the same token obliged to defend attacks on the substantive and procedural fairness of its decision if it wishes to avoid negative outcome. This therefore implies that there is an obligation on the employer to place evidence for the fairness of the process. Following that judgement, I find it on the balance of probabilities that the employer managed to place evidence of the fairness of the process. There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post, see Hlophe v HoD Department of Education KZN and others (D755/2021) [2024] ZACD4; (2024) 45 ILJ 805 (LC). The employee was given an opportunity to compete for the post. Promotion is the prerogative of the employer provided it acted fairly. There was no substantiated evidence on the balance of probabilities that the employer’s decision was based on capricious and arbitrary grounds. In the light of the above, I am satisfied that the employer on the balance of probabilities managed to defend attacks on the substantive and procedural fairness of its decision as it was held in the Pamplin case above. I therefore conclude on the balance of probabilities that the employee failed to make up a good case and the relief she sought should be rejected, and so it is. Award
34. The conduct of the employer by not promoting the employee did not constitute an unfair labour practice.
35. The employee’s case is dismissed.
36. No order as to costs.

Seretse Masete Date 18/03/2026
ELRC Panellist