Case Number: ELRC351-25/26GP
Arbitrator: Clint Enslin
Date of Award: 19 February 2026

In the matter between

Siphesihle Dube
(Applicant)

And

Department of Education – Gauteng First Respondent

Sebushe Tshehla Second Respondent
(Respondents)

Union/Applicant’s representative:

Mr Sifiso Mnisi (SADTU)

Telephone: 0818052496
Telefax:
E-mail: jobemnisi86@gmail.com

Respondent’s representative: First Respondent – Mr John Marakalla / Second Respondent – Mr Vincent Nkhapane (NATU)
Respondent’s address:

Telephone: 0825540831 & 0840886920
Telefax:
E-mail: John.Marakalla@gauteng.gov.za / vinnkhapane04@gmail.com

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute (promotion), referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), read with clause 17 of Part C of the ELRC Constitution, was held on-line via the Teams platform, on 21 August, 30 September, 17 November 2025 and 26 January 2026.
2. The Applicant, Ms Sipheshile Dube, was present and represented by Mr Sifiso Mnisi, an official of SADTU. The First Respondent, Department of Education – Gauteng was represented by Mr John Marakalla, Deputy Education Specialist of the First Respondent. The Second Respondent, Mr Sebushe Tshehla, was present and represented by Mr Vincent Nkhapane, an official of NATU.
3. The arbitration was digitally recorded.
4. Written heads of argument were received on 5 February 2026.

Issue to be decided

5. The issue to be decided is whether or not the appointment of the Second Respondent to the position in question, by the First Respondent, amounted to an unfair labour practice against the Applicant; and
6. If so, to determine the appropriate relief.

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute relating to promotion.
8. The parties signed a pre-arbitration minute in which they confirmed that the issue in dispute, and which must be decided by the arbitrator, is whether the Second Respondent is qualified for the post. (See paragraphs 3.2 and 3.2.1 of the minute).
9. In the same pre-arbitration minute, at paragraph 3.3, the Applicant states the relief she seeks is that the appointment of the Second Respondent to the position should be set aside, if it is confirmed that he does not meet the minimum requirements.
10. In dealing with the issues listed in the checklist contained in ELRC Collective Agreement 3 of 2016 (ELRC Guidelines: Promotion Arbitrations) the Applicant again confirmed that it was her position that the Second Respondent did not meet the minimum requirements, specifically that he did not possess a REQV13 qualification and also that if the appointment of the Second Respondent is set aside, the process should be run afresh.
11. The following facts were common cause:

11.1 This is promotion dispute relating to post TS24ED1095 at Mamelodi East Pre-Vocational School, which is a Departmental Head (PL2) post for Mechanical Technology.

11.2 The Applicant is currently a PL1 Educator at Mamelodi East Pre-Vocational School.

11.3 The said post was advertised on 22 April 2024 under vacancy list 2 of 2024; shortlisting and a recommendation for appointment was done.

11.4 The Applicant applied for the post after it was advertised.

11.5 Both the Applicant and Second Respondent were invited to interviews.

11.6 The Second Respondent was appointed on 26 June 2025.

11.7 The Applicant’s annual salary is R333 624.

12. The following facts were in dispute:

12.1 Whether the Second Respondent met the minimum requirements for the position.

13. The First Respondent submitted a bundle of documents, marked as “R” as well as the pre-arbitration minute and an extract of PAM. An extract from the National Education Policy, marked A, was also submitted. Parties agreed the documents were what they purported to be. Survey of evidence
14. This award constitutes a brief summary of evidence, arguments and my reasons for the award issued in terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the
    evidence and arguments heard and considered in deciding this matter.

Applicant’s evidence
Ms Siphesihle Dube

15. The Applicant, Ms Sipheshile Dube, testified that page 78 of R was the first page of her application form for the post in question. The information contained in the said form, which ran until page 82, was her information and she had signed the form on page 82. She was a qualified teacher as per the requirements of the post. As per page 13 of R, the requirement for the post was Mechanical Technology. She had level 1 to 3 Mechanical Technology as part of her BEd degree major subjects (see pages 89 and 90 of R). She also had management subjects as part of her BEd and Honours Degree (see page 89 and 92 of R). She was disputing that the Second Respondent had met the minimum requirements for the post in question. Specifically that he did not have an REQV13 (a diploma in teaching with major subject Mechanical Technology.).
16. She agreed that the advert did not state that a BEd degree was a requirement and that she had been shortlisted as she had met the minimum requirements. On 7 May 2024 she and the Applicant had shared information and it became clear that the Second Respondent’s highest qualification was a trade in welding. Given that the closing date for applications in the current post was 10 May 2024 she did not believe that he could have obtained an REQV 13 in said period. She agreed that it was an assumption on her part that the Second Respondent did not have a Mechanical Technology qualification. At the time of their applications, for the post in question, the Second Respondent was her acting Department Head. She conceded that she had lodged her dispute on suspicion that the Second Respondent did not have the required qualification.
17. The minimum requirement of teaching experience, in Mechanical Technology, for the post was 3 years. She agreed that the Second Respondent met this requirement. She further agreed that one could not register with SACE if you did not qualify as an educator. To her knowledge, if you were from an engineering field and had an N3 and a trade test you could get temporary SACE admission. You then had three years to do a teaching qualification to get a permanent SACE certificate. She agreed that page 54 of R appeared to be a permanent SACE certificate of the Second Respondent. She was familiar with PAM and agreed that it would indicate what the requirements were for educators per post level.
18. PAM B.3.2.1.3 read as follows: “Notwithstanding the requirements set out in paragraphs B.3.2.1.1 and B.3.2.1.2, a person appointed to anyone of the following posts, is not required to be a qualified educator but must comply with the relevant requirements for appointment as set out in the document “Criteria for Evaluation and Registration of Qualifications for Employment in Education”
    ……………………………….

(m) Mechanical Technology

19. PAM B.3.2.1.7 read “A person who qualifies for appointment in a permanent capacity in terms of paragraphs B.3.2.1.1 to B.3.2.1.8, may also be promoted to an appropriate post on a higher post level.” The Second Respondent was teaching Mechanical Technology before his appointment into the contested position. Page 61 of R appeared to be a National Diploma (Engineering Field) issued to the Second Respondent and effective 1 May 2024. It included Mechanotechnics N4, N5 and N6. Page 63 of R was an Engineering Certificate N4 for the Second Respondent, which included Mechanotechnics N4. Page 64 of R was an Engineering Certificate N5 for the Second Respondent, which included Mechanotechnics N5 and effective 1 September 2016. Page 65 of R was an Engineering Certificate N6 for the Second Respondent, which included Mechanotechnics N6 and which was effective 1 May 2024.
20. Page 16 of R was the shortlisting minutes for the post in dispute. The interviews were held on 14 August 2024. She did not have any issue with the criteria used for shortlisting. She agreed that the advert required Mechanical Technology. P110 of R was the recommendation list, where the Second Respondent was ranked number 1 with 90% and she was ranked second with 81%.

First Respondent’s evidence
Ms Thabiso Malebana (Chair of shortlisting and interview panel)

21. Ms Thabiso Malebana testified that she was a member of the SGB and treasurer. She knew the Applicant as the Applicant was a teacher at their school. She had been the panel chair during the process in question. The Collective Agreement used by them in the selection and recruitment process was the ELRC Collective Agreement 1 of 2021, which was contained on pages 136 to 156 of R. It was for Gauteng. Page 16 of R was the minutes of the shortlisting. They had created criteria based on the advert / post requirements and had then shortlisted those who met the requirements. They had shortlisted 4 candidates. The advert for the position in question was contained on page 13 of R as TS24ED1095. The School’s category was that of a special school and the subject required was Mechanical Technology for grades 4 to 9. The minimum requirement was a National Diploma and experience beyond 3 years in the field of Mechanical Technology.
22. She confirmed that the Second Respondent met the requirements as he would not have been shortlisted if he did not. Page 44 of R was the Second Respondent’s application form for the post in question. On page 46, item 9, it confirmed that he had been teaching welding for 4 years and 3 months at his current employer and had also taught same at his previous employer for 4 years and 2 months. As such he had 8 years and 5 months teaching experience in the field. By contrast, the Applicant only had 3 years and 1 month’s experience in teaching same. A special school was one that offered skills training in subjects such as welding, carpentry, hospitality, etc.
23. Page 61 of R was the Second Respondent’s National Diploma in Engineering. Page 63 was his N4 Certificate in engineering studies. Page 64 was his N5 Certificate in engineering studies. Page 65 was his N6 Certificate in engineering studies. They all had Mechanotechnics as subject. The advert did not require a BA Degree majoring in Mechanical Technology. As per page 22 of R, the Applicant had scored 81% whilst the Second Respondent had scored 90%.
24. She agreed that the highest qualification indicated on the Second Respondent’s application form was an N5. There were, however, supporting documents attached to the applications which were also considered. She agreed that 5 applicants were shortlisted, however, only 4 were interviewed. Page 111 was part of the form they filled in that was sent to the First Respondent. It confirmed that the Second Respondent had an N5 and had to complete 1 module in order to obtain his N6 Diploma.

Ms Masimole Matlala (Principal of school where post in question is situated.)

25. Ms Masimole Matlala testified that she had been the Principal at the school where the post was since 2016. She had been a panellist on the shortlisting and interview panel. They had used the Collective Agreement 1 of 2021 in doing so. The post in question was advertised as per page 13 of R and required Mechanical Technology grades 4 to 9. The minimum required experience was 3 years and the minimum required qualification was a diploma (REQV 13). There was no requirement for a Degree in the advertisement.
26. The Second Respondent was registered with SACE, which is the only body that could give authority for a person to be a teacher. In order to qualify for same, the person had to have a REQV 13. Page 69 of R was the Second Respondent’s SACE Certificate. The Second Respondent had a Grade 12 from a Technical School. He then furthered his studies at a TVET College. He also obtained a Trade Certificate and as such qualified as an artisan. He previously worked at Murray and Roberts, before he went to teach at a technical school. Thereafter he came to teach at the current school in question. The Second Respondent also held a diploma in Mechanical Engineering per page 61 of R, which was effective from 1 May 2024. Per pages 16 to 18 of R, the shortlisting was done on 14 August 2024 and, as per page 19 of R, interviews were held on 19 August 2024.
27. Despite the application form for the Second Respondent stating N5 as his highest qualification, when they received the pack, there was a National Diploma in Mechanical Engineering for him. His trade certificate, in welding, was on page 52 of R and was obtained on 2 December 2015. Welding fell under Mechanical Technology. The school, where the post in question was, was a special school for learners with mild intellectual disability and as such a technical occupational curriculum was followed. As per PAM 3.2.1.3 read with PAM 3.2.1.7, the appointments, such as the one in question, did not require the person to be a qualified educator, as they were specialised in their field.
28. The minimum entry requirement for such positions was an N3, a trade test qualification and two years’ experience. The Second Respondent held an N5 (as per his application form), he had completed a trade test and had more than 2 years’ experience as a teacher in the field of technology. As such same was the equivalent of REQV13 (Diploma). (See A – 72 at 4.1 & PAM B.3.2.1.3 m) The Second Respondent accordingly qualified to teach in the field of Mechanical Technology at REQV13 level and as such also qualified for promotion. The minimum qualification requirement for the post in question was an REQV13 (Diploma) or equivalent. She disputed that an N6 was required.

Ms Rishile Chauke (Deputy Director: Transversal HR Services, of the First Respondent.)

29. Ms Rishile Chauke testified that she works at the Department of Education Tshwane South District. She had been in the position of Deputy Director since 1 March 2020, however, she had been in her current position since 1 October 2023. Her core responsibility are to oversee HR provisioning, which, inter alia, included the filling of posts. She had knowledge of the post in question. Before an appointment was made, they considered the needs of the school as aligned to the advertisement, qualifications required per the advertisement, experience as per the requirement per post and performance in the interview. The aforementioned had to be aligned with the Collective Agreement 1 of 2021 and PAM.
30. The requirements for the post in question (Departmental Head) was 3 years teaching experience, and an REQV13. The Second Respondent’s application form (see page 45 and 46 of R) indicated that he possessed a matric and an N5. The first thing that they looked at before appointing a person was the type of school. The school in question was a prevocational school which meant it was a special needs school. They then consulted the National Education Policy (See A) and PAM, which assisted with appointments in such schools in that it guided them on equivalent qualifications. According to PAM, no qualification in education was required for appointment to teach (PL1) in the field of Mechanical Technology.
31. In the current case, the Second Respondent held an N5, had the required experience and a trade test. This was equivalent to an REQV13. This was further confirmed by The National Education Policy Act (“A”). PAM Chapter B, B.3.2.1.3 also confirmed that such person may be appointed as an educator (PL1) and that in terms of B.3.2.1.7 such person may be promoted. The Second Respondent accordingly qualified for the post in question. The delegated authority for the post in question was the District Director as it was a PL2 post. The recommendation form on page 113 and 114 of R had been signed by her on 10 June 2025. The District Director (Mr A Nkadimeng) had also signed the form below her on 11 June 2025. The Second Respondent met the minimum requirements of the post in question.
32. The minimum requirements for the post in question were an REQV 13 qualification, 3 years’ teaching experience and SACE registration. The Applicant’s application form (see page 44 of R) stated that he had a grade 12 and an N5. In appointments in special schools, they were assisted by the Evaluation and Recognition of Qualifications Document and PAM Chapter B. B.3.2.1.3. In terms of same, an N3 qualification together with a trade test allowed for appointment to a PL1 post and same was to be paid at REQV13 level. Such person did not need to be a qualified teacher. B.3.2.1.7 confirmed further that such person may be promoted. The Second Respondent’s N5 was higher than a N3 and he had a trade test qualification. As such he qualified for the post in question. .
33. She agreed that the interview minutes on page 23 of R showed the Applicant as the second candidate, whilst the ratification minutes on page 164 of R had the Applicant as third. The ratification was a feedback process and could not change the previous processes. In terms of her recommendation she had dealt with the Applicant as candidate number 2 in terms of recommendation. Page 110 of R, which was her recommendation form confirmed same.

Mr Andries Nkadimeng (District Director: Tshwane South Gauteng, of the First Respondent.)

34. Mr Andries Nkadimeng testified that he had been in his current position since January 2025, however, he had previously acted in the said position since September 2023. He was responsible for the overall management and administration of the district. He had knowledge of the post in question. As per the advertisement on page 13 of R, the post required Mechanical Technology for grades 4 to 9. The school where the post existed was a special school specialising in vocational training. Before effecting an appointment, he considered the needs of the school, applicant’s qualifications, the applicant’s experience and any equity requirements.
35. Page 45 of R, at point 6, confirmed that the Second Respondent had a grade 12 and an N5 (mechanical). Page 46 confirmed that he had a total of 8 years and 5 months relevant experience. The Second Respondent met the minimum requirements of the post in question as he had more than the required 3 years’ experience. His qualifications (N5 and trade test) were also equivalent to an REQV13 and he also had the required leadership, management and administrative experience. As the delegated authority, he had the authority to make appointments at PL2 level. As per page 114 of R he had signed and approved the appointment, of the Second Respondent, on 11 June 2025. He had approved same as the Second Respondent had met the minimum requirements and had performed well in the interview. An N6 is at REQV 13 level, however, the Second Respondent qualified to be shortlisted in terms of PAM Chapter B B.3.2.1.3 and B.3.2.1.7. He was a permanent appointment and as such he qualified to be promoted.

Analysis

36. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
37. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”. (Own underlining)
38. The Applicant challenged the alleged unfairness of appointment of the Second Respondent to the post of Departmental Head (PL2) Mechanical Technology at Mamelodi East Pre-Vocational School. The basis of her challenge is clearly set out in the pre-arbitration minutes signed by the parties. It is simply that the Second Respondent did not meet the minimum requirements of the position in question. More specifically that he did not have the required REQV13 qualification. Despite certain other issues being canvassed, the parties are bound by the issues set out in their signed pre-arbitration minute, unless special circumstances exist. (See National Union of Metalworkers of SA and others v Driveline Technologies (Pty) Ltd and another 2000 (4) SA 645 (LAC) and Filta- matix (Pty) Ltd v Freudenberg 1998 (1) SA 606 (SCA)) No special circumstances exist, or have been put forward, which would lead me to conclude that same should be departed from. The aforementioned basis of the Applicant’s challenge was also confirmed in her evidence.

Did the Second Respondent meet the minimum requirements of the post in question, specifically the REQV13 requirement?

39. From the evidence, it is to my mind clear that the minimum requirements for the post were an REQV 13 or equivalent relating to Mechanical Technology, minimum 3 years teaching experience and registration with SACE. The evidence further shows that at the time of his application, the Second Respondent held an N5 Certificate in Mechanical Technology and had more than three years ’experience teaching. He also held a trade test qualification in welding. The Second Respondent also obtained an N6 qualification, although he may well have obtained same at a later stage as it was not referred to in his application.
40. As per the evidence of the Applicant’s witnesses, qualifications for appointments to special schools are dealt with in terms PAM and the Evaluation and Recognition of Qualifications Document. PAM Chapter B, at B.3.2.1.3 reads as follows: “Notwithstanding the requirements set out in paragraphs B.3.2.1.1 and B.3.2.1.2, a person appointed to anyone of the following posts, is not required to be a qualified educator but must comply with the relevant requirements for appointment as set out in the document “Criteria for Evaluation and Registration of Qualifications for Employment in Education”
    ……………………………….

(m) Mechanical Technology

41. PAM Chapter B, at B.3.2.1.7 reads “A person who qualifies for appointment in a permanent capacity in terms of paragraphs B.3.2.1.1 to B.3.2.1.8, may also be promoted to an appropriate post on a higher post level.” (Own underlining) In terms of the Criteria for Evaluation and Registration of Qualifications for Employment in Education, as contained in the National Education Policy, at 4.1 it is confirmed that in terms the evaluation of qualifications for employment in posts for teachers of technical subjects, a three subject National Certificate III (N3), including Trade Theory/Technology as a subject, plus a completed apprenticeship or a pass in a trade test plus two years appropriate experience, or certain alternatives is sufficient.
42. From the evidence, it is further clear that the Second Respondent at the time of his application had at the very minimum a N5 qualification in the Mechanical Technology field. He further had a trade test qualification in welding and was registered with SACE. This entitled him to be appointed in a permanent capacity to teach Mechanical Technology, as per PAM B.3.2.1.3 read with Clause 4.1 of the National Education Policy. He also had the required experience in the field as well as teaching experience. In terms of PAM B.3.2.1.7 he then also qualified to be promoted. I am accordingly satisfied that the Second Respondent indeed met the minimum requirements for the post in question and that his qualifications were equivalent to REQV 13 and recognised as such for purposes of appointment as an educator and promotion in the field of Mechanical Technology.
43. In light of the above, I am of the view that the Applicant has failed to prove, on a balance of probabilities, that the First Respondent committed an unfair labour practice against her by appointing the Second Respondent to the position of Departmental Head, Mechanical Technology, at Mamelodi East Pre-Vocational School.

Award

44. The Applicant, Ms Siphesihle Dube, was not subjected to an unfair labour practice by the First Respondent, the Department of Education – Gauteng, by it appointing the Second Respondent to the position of Departmental Head, Mechanical Technology, at Mamelodi East Pre-Vocational School.
45. The Applicant, Ms Siphesihle Dube, is not entitled to the relief she seeks.

Signature:

ELRC Arbitrator: Clint Enslin