18 November 2025 -ELRC1453-24/25GP

Case Number: ELRC1453-24/25GP
Commissioner: PAUL PHUNDU
Date of Award: 17 November 2025

In the ARBITRATION between

NATU obo Salome Pheleu
(Union/Applicant)

And

Department of Education – Gauteng
(Respondent)

Union/Applicant’s representative: Mr Bongani Ndlovu
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Mr Peter Nkosi
Respondent’s address:

Telephone:
Telefax:

      Details of hearing and representation

[1] This is the award in the arbitration between NATU obo Salome Pheleu, (hereinafter referred to as the Applicant) and Department of Education – Gauteng, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 28 July, 29 September and 20 October 2025 virtually on MS Team Platforms.
[2] The Applicant was present at the arbitration hearing and she was represented by, Mr Bongani Ndlovu, Union Official from NATU. The Respondent was represented by, Mr. Peter Nkosi, Employee Relations Official.
[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[4] Both parties submitted bundles of documents marked as annexure “A’ and annexure “B” and the content was not disputed.
[5] The proceedings were digitally recorded. I have also kept handwritten notes.
[6] Both parties filed written closing arguments and I have considered the closing arguments.

       Issue to be decided

[7] I am required to establish whether the Respondent committed an unfair labour practice in relation to promotion or not, if so, I must determine the appropriate remedy.

       Background to the issue

[8] The Applicant is employed by the Respondent as an Educator PL 1 at Seotloana Primary School.
[9] The Applicant applied for a Deputy Principal position which was advertised by the Respondent. She was shortlisted, interviewed and not appointed into the position.
[10] The Applicant alleged that the Respondent committed an unfair labour practice by not appointing her into the contested position of Deputy Principal.
[11] According to the Applicant, she was scored the highest and she was number 1 on the list of the three recommended candidates for appointment.
[12] She declared a dispute. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for promotion.

       Survey of arguments and evidence

The applicant’s case

[13] Mr Hope Makhobela testified, under oath, that he was the chairperson of the panel that interviewed the recommended candidates. The Applicant was one of the three candidates who were shortlisted and interviewed for the position of a Deputy Principal at Seotloane Primary School. Other shortlisted candidates were Mr Mahlare and Malebese.
[14] Mr Makhobela stated that the position of Deputy Principal was a level 3 managerial position.
[15] Mr Makhobela stated that the Applicant had 14 years’ experience as an Educator and she did not have managerial experience. Whilst Mr Malebese has 8 years’ experience as an Educator occupying PL2 position which is a managerial position. Mr Mahlare has 23 years’ experience as an Educator.
[16] According to Mr Makhobela, the Applicant obtained a score of 67 points which was the highest score. The appointed candidate, Mr Malebese obtained 66 points and the difference between candidate 1 and candidate 2 was 1 point. Mr Malebese was number 2 in the list of the recommended candidates.
[17] Mr Makhobela further stated that managerial experience was not the only factor that they looked for before making a recommendation for appointment. He stated that Gender Equity was one of the factors and criterion considered and this included the scores obtained by the candidates during the interview process.
[18] Under cross-examination Mr Makhobela indicated that Gender Equity was a deciding factor.
[19] Mr Makhobela confirmed that Mr Malebese was appointed into the position of Deputy Principal because he has managerial experience whilst Mr Pheleu did not have any managerial experience. Furthermore, the primary school has more females in managerial positions whilst males were under-represented.
[20] Mr Makhobela confirmed that the appointment of Mr Malebese was in the main based on Gender Equity. Hence he was appointed.
[21] Ms Salome Pheleu testified, under oath, that she is employed by the respondent as PL1 Educator. She stated that she has 14 years of experience as an Educator at Seotloane Primary School.
[22] Ms Pheleu indicated that in April 2024, she applied for an Advertised position of Deputy Principal at Seotloane Primary School. She was shortlisted and interviewed. However, she was not appointed.
[23] According to Ms Pheleu, she obtained the highest score compared to the other two candidates who were also interviewed. Ms Pheleu stated that the respondent acted unfairly by not appointing her into the contested position.
[24] She lodged a grievance and on 29 November 2024, she was informed that the respondent was looking for a male candidate as they wanted to ensure that Employment Equity targets of the respondent were met. She was not happy with the response hence she declared a dispute.
[25] Ms Pheleu indicated that she has managerial experience because she ordered books and analysed results
[26] She concluded by stating that she has more managerial experience than the successful candidate.
[27] Under cross-examination Ms Pheleu stated that she felt bad by not being appointed. She felt discriminated against by the respondent. Even though she acknowledged the reasons given for non-appointment.
[28] Ms Deborah Mbedzi testified, under oath, that she was a member of the School Governing Body and she was the Secretary during the interview proceedings. She had no role to play during the interview process.
[29] According to Ms Mbedzi, the applicant was scored highest followed by Mr Malebese, the successful candidate. The difference in terms of scores between them was 1%.
[30] Ms Mbedzi stated that Gender was a deciding factor when it came to the appointment. Mr Malebese was appointed based on Equity targets and the need for a male candidate in order to balance the gender targets.
[31] Ms Mbedzi concluded by stating that managerial experience, scores and equity targets was used as a criterion before the appointment of Mr Malebese.
[32] Under cross-examination Ms Mbedzi confirmed that the appointment of Mr Malebese was based on managerial experience and Employment Equity targets of the respondent.
[33] She further confirmed that the Panel of Interviews process can only recommend, however, the decision to appoint a suitable candidate vested within the powers and authority of the respondent.
[34] Ms Nana Ntleng testified, under oath, that she is the Chairperson of the School Governing Body. She said the criteria used before appointment was made was based on Managerial experience of the candidates, Qualifications and Employment Equity targets of the respondent were taken into account.
[35] According to Ms Ntleng, the 3 recommended candidates had the potential to fill the vacancy.
[36] Ms Ntleng stated that the Primary School had more females occupying management positions, however, males were under represented. Hence the appointment of Mr Malebese.
[37] Ms Ntleng further stated that the respondent needed to balance its Employment Equity needs.

[38] Under cross-examination Ms Ntleng confirmed that the School has more females in management position than males.
[39] Ms Ntleng further confirmed that Mr Malebese has a BCom Degree and Post Graduate Diploma in Teaching whilst the applicant has only a Diploma in Teaching.
The Respondent’s case

[40] Ms Charmaine Trent testified, under oath, that she is employed by the respondent as Deputy Chief Education Specialist. She stated that the applicant applied for a Deputy Principal position and she was not appointed. Mr Malebese was instead appointed into the position.
[41] Ms Trent stated that the applicant misrepresented herself by completing form C and declared that she was recommended for appointment whereas she was not recommended for appointment. This was fraud.
[42] Under cross-examination Ms Trent confirmed that the Principal where this fraudulent activity took place was suspended for 3 months. The applicant was not charged.
[43] Mr Percival Nkosi testified, under oath, that he is employed by the respondent as Chief Personell Officer. He said form C was used to record the names of the 3 recommended candidates for appointment in order of preference.
[44] Mr Nkosi stated that the highest score does not guarantee appointment. He indicated that Employment Equity needs of the respondent were taken into account and this aspect of scoring was a deciding factor hence the appointment of Mr Malebese. Other aspect considered was managerial experience.
[45] Mr Nkosi concluded by stating that the Mr Malebese was appointed based on Equity needs.

[46] Under cross-examination Mr Nkosi confirmed that there were deliberations amongst the panel members after the interview process. According to Mr Nkosi, the appointment of Mr Malebese was fair.
[47] Mr Nkosi further confirmed that Diploma plus ACE is at RQV14 and is equivalent to a degree.
[48] Ms Ivy Malefo Kolobe testified, under oath, that she is employed by the respondent as Principal at Seotloane Primary School. She confirmed that she was part of the interview panel.
[49] Ms Kolobe stated that the applicant was scored high. However, the panel also considered Managerial experience, qualifications and Equity needs of the respondent.
[50] Ms Kolobe stated that the applicant lacked Managerial experience and she is a PL1 Educator. Whilst Mr Malebese had 8 years Managerial experience as the Head of Department and he is a PL2 Educator.
[51] Ms. Kolobe further stated that the School has 5 females in managerial positions whilst only two managerial positions are occupied by males. They needed to address this by implementing the employment equity needs of the respondent.
[52] According to Ms Kolobe, Mr Malebese was appointed to balance the ration between females and males.
[53] Under cross-examination Ms Kolobe confirmed that she assisted the panel by providing it with relevant information concerning the candidates. She stated that the appointment of Mr Malebese into the position of Deputy Principal was fair and the respondent did not commit any unfair labour practice.

Analysis of evidence and arguments

[54] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
[55] Section 186(2) provides that; (i ) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving – (ii) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.

[56] The dispute was referred as an allegation of an unfair labour practice concerning promotion.
[57] I am therefore required to determine whether the Respondent’s conduct was fair or unfair in not promoting the applicant, to succeed in such a claim, the Applicant must show that the Respondent’s conduct was arbitrary, capricious and therefore unfair.
[58] It is common cause that the Applicant applied for the position of Deputy Principal, she was shortlisted, interviewed but not appointed.
[59] I am satisfied and convinced by Mr Makhobela’s argument that Mr Malebese was appointed into the position of Deputy Principal because he has managerial experience whilst Mr Pheleu did not have any managerial experience. Furthermore, the primary school has more females in managerial positions whilst males were under represented. The reason I say so is because this was not disputed by the Applicant when it was put to her.
[60] I am persuaded that the score was not the only factor that should be used to determine a suitable candidate for promotion.
[61] I reject Ms Pheleu’s argument that she has more managerial experience than the successful candidate. The reason I say so is because the successful candidate has 8 years managerial experience at PL2 level (HOD) while the applicant has only 14 years’ experience as an Educator at PL1 level.
[62] I am not persuaded and also not convinced by the applicant’s argument that she has managerial experience. The reason I say so is because the applicant failed to mention the managerial position she occupied and when was she appointed into this position. She is still a PL1 Educator.
[63] I am satisfied and convinced by Ms Mbedzi testimony that Mr Malebese was appointed based on Equity targets and the need for a male candidate in order to balance the gender targets.
[64] I accept Ms Ntleng’s testimony that the Primary School had more females occupying management positions whilst males were under represented. In my view, scores were not the only criteria used. Managerial experience as well as the Employment Equity needs of the School were taken into account. I accept that Employment Equity needs of the respondent was the deciding factor. Based on this alone, there is no evidence before me proving that the respondent had committed an unfair labour practice regarding promotion.
[65] The reason given by the respondent in substantiating its decision not to appoint the applicant was reasonable, justified and fair.
[66] It is my finding that the successful candidate, Mr Malebese, is highly qualified if we were to compare qualifications between the two candidates.
[67] I accept Mr Nkosi’s argument that scores were not the only factors considered but Equity and Managerial experience was also taken into account.
[68] I accept Mr Nkosi’s testimony that the highest score does not guarantee appointment. I accept Mr Nkosi’s testimony that Mr Malebese was appointed based on Equity needs of the respondent. In my view, this decision was not capricious and it was reasonable and fair.
[69] I accept Ms Kolobe’s testimony that the applicant lacked managerial experience and she has never occupied a managerial position. I also accept that the appointment was made after considering the Employment Equity needs of the respondent.
[70] In George v Liberty Life Association of Africa Ltd [1996] 17 ILJ 871 (LC), it was determined that the courts should not intervene in cases relating to promotions unless an element of bad faith or procedural unfairness exists. The enquiry is not whether or not the employer appointed the right candidate as perceived by the employee or the courts. The enquiry is rather whether the employer acted procedurally and substantively fairly when reaching his decision. Substantive fairness may include, inter alia, instances of bad faith or discrimination

[71] In Aries v CCMA & others the Court held that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.

[72] It is my finding that the respondent has not committed an unfair labour practice in as far as the appointment of Mr Malebese is concerned.

[73] The Applicant has failed to prove, on a balance of probabilities, that the Respondent has committed an unfair labour practice concerning promotion.
[74] I therefore make the following award: