ARBITRATION AWARD

IN THE MATTER BETWEEN: ELRC827-25/26MP

EPHRAIM MAPULANE CHILOANE APPLICANT

And

EDUCATION DEPARTMENT OF MPUMALANGA 1st RESPONDENT

RUSSEL MNISI 2nd RESPONDENT

DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged Unfair Labour Practice, referred to in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended was finalized at Nelspruit (1st respondent’s head offices) on 02 and 03 February 2026.
1.2. Both parties attended the proceedings. The 1st respondent was represented by Mcmillan Shabangu, the 2nd respondent was represented by Kabelo Lekitlane, union official from SADTU, while the applicant was represented by Mayibongwe Khumalo, an attorney from Mohlala Attorneys.
1.3. The hearing was held in English and was digitally recorded.

ISSUES TO BE DECIDED
2.1. Whether or not the decision of the 1st respondent to appoint the 2nd respondent applicant to the position of Deputy Chief Education Specialist: Circuit Management (DCES:CM) was procedurally and substantively fair only in respect of:
a) whether or not the 2nd respondent met all the minimum requirements as stipulated in the gazette/advertisement.
2.2. If the appointment of the 2nd respondent was procedurally and substantively unfair, I must determine appropriate relief in terms of section 193 of the Labour Relations Act 66 of 1995, as amended.

BACKGROUND TO THE ISSUES
3.1. The applicant viewed his non-appointment to the position of DCES:CM to be procedurally and substantively unfair and prayed to be appointed to the position as advertised.
3.2. The following issues are common cause to both parties:
a) the applicant is currently employed on permanent basis at Hlanganani Secondary School (P3) as a principal.
b) the applicant was appointed to the position in dispute from 01 January 2025 until 17 October 2025.
c) both the applicant and the 2nd respondent applied for the position, shortlisted and attended interviews.
d) the 2nd respondent was appointed to the disputed position from 01 November 2025, after the interviews.
3.3. Prior to the commencement of the proceedings, the applicant submitted a bundle of documents marked “Applicant”, while the 1strespondents submitted a bundle of documents marked “Employer”. The 2nd respondent did not submit any documents.
3.4. The applicant closed his case after leading his own evidence and two witnesses, while the 1st respondent closed its case after leading the one witness. The 2nd respondent did not lead any evidence or call witnesses.
3.5. Both parties submitted written closing arguments on the agreed date and time.

SUMMARY OF EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter.

THE APPLICANT’S CASE
5.1. The applicant, Ephraim Mapulane Chiloane, testified that the 2nd respondent meets all other requirements except the leadership requirement. The advert and PAM document stipulate that candidates must have eight (08) years of relevant experience. The eight (08) years relevant experience implies that the candidate must have been a principal for 08 or more years since the advertised position is a managerial position and the successful candidate’s main duty is to manage principals. When the 2nd respondent applied for the position, he only had 02 to 03 years’ experience as a principal of a school. However, the 2nd respondent has more than eight years of teaching experience. Because the 2nd respondent has less than 08 years’ experience in a supervisory and/or managerial position he ought to have been automatically disqualified as candidate to the position. After the interviews he was recommended as the second best and that should the 2nd respondent decline the appointment, he should be appointed to the position. During his acting as DCES:CM, the White River Circuit performed very well during the 2025 matric results. He has more than 35 years of teaching experience. He has been a school principal for 26 years.
5.2. Under cross-examination, the applicant testified that the dispute is not about how he was scored during the interviews but that the 2nd respondent was shortlisted despite not meeting one of the minimum requirements. At the time of the shortlisting, the 2nd respondent was a school principal for 02 to 03 years. The 2nd respondent was appointed because he is the regional chairperson of the union, SADTU. The 2nd respondent was once appointed to act as a school principal from July 2020 until September 2021. The 2nd respondent also has been a deputy principal from May 2019 until July 2021, and he occupied the position of departmental head from September 2015 until May 2019. The positions of deputy principal and departmental head are managerial positions. Between 2019 and 2025, the 2nd respondent occupied managerial positions.

THE RESPONDENT’S CASE
6.1. The 1st respondent’s witness was Chukudu Manyabeane. He testified that he is currently employed by the 1st respondent as chief director. He was part of the shortlisting panel. During the shortlisting, of all the candidates who met all the minimum requirements, only five candidates were selected for interviews. To select the five candidates from all other qualifying candidates, the panel agreed that preference should first be given to candidates who have acted in the advertised position. The second criteria used to select the five candidates, they considered the candidates who were sitting principals at the time of shortlisting and have a proven track record of performance. At the time of the shortlisting, the 2nd respondent was a sitting principal and has proven track record of performance. Three years in succession prior to the interviews, the 2nd respondent’s school performed far better than the applicant’s school in terms of matric results. The 8 years relevant experience or 8 years’ experience in the educational field means that candidates must have a minimum of 8 years’ experience of working in the educational field and in those 8 years, a candidate must have occupied a managerial position. DCES:CM is a office based position and it does not require one to have a classroom teaching experience. The 2nd respondent experience of more than 8 years as an educator coupled with more than two years as a school principal, qualified him to be shortlisted.
6.2. Under cross-examination, Chukudu Manyabeane, testified that during the shortlisting, the unions did observe the entire process because they were just coming and going out. As the chairperson of the shortlisting process, he made sure that the whole process was conducted in fair manner. The fact that the 2nd respondent is the regional chairperson of the union, it never played any role because all the panelists never engaged with him but the national office of the union. During the shortlisting, the panelists will agree on certain requirements apart from those listed on the advert to select the best five candidates to be interviewed. During the shortlisting, the 2nd respondent had two years’ experience as a principal. Before being appointed as a principal, the 2nd respondent acted in the position of school principal for some time, and he also occupied the positions of deputy principal and head of department for many years. The deputy principal and head of department positions are also regarded as managerial positions. The fact that the applicant acted in the contested position and performed well does not necessarily mean that the position should not be advertised. Unlike the positions of school principals and educators, the advert and the PAM document did not directly specify the experiential competencies required for the position of DCES: CM. For the position of principal, the PAM document directly specifies that candidates must have 7 years of actual teaching experience. T DCES: CM position is office based and candidates must have a minimum of 8 yeas’ experience in the educational field and some managerial experience. The advert and the PAM document do not specify the number of years candidates should have in a managerial position. It is not correct that principals with more than 8 years’ experience are the only candidates to be considered for the position of DCES: CM. Managing principals do not require the candidate to have been appointed as principal before. The contested position is not only limited to candidates who have been principals but also to other candidates who have never been educators but were exposed to education field for minimum period of eight (8) years.

ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision not to appoint him to the position of DCES:CM was procedurally and substantively unfair.
7.2. The Collective Agreement No 3 of 2016 ELRC Guidelines: Promotion Arbitrations, provides that where the employee complains that another employee was promoted, he or she must show that:
a) he or she has the necessary skills; and
b) the person who was promoted does not possess the same or same level of skills.
7.3. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held 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 unsubstantial reasons, or based upon any wrong principle or in a biased manner.
7.4. The applicant based his argument on disputed allegation that the 2nd respondent did not meet one of the minimum requirements. The applicant argued that the 2nd respondent does not possess 8 years relevant experience as per the advert and PAM document. The advert stipulates that candidates must have a minimum of 8 years relevant experience, while the PAM document provides that candidates must have a minimum of 8 years’ experience in the educational field. According to the applicant’s interpretation of the 8 years relevant experience or 8 years’ experience in the educational field, it means that a candidate must have a minimum of 8 years’ experience as a principal.
7.5. The applicant’s interpretation of the said requirement is not convincing at all and was also not supported by any other evidence. If indeed the applicant’s interpretation of the requirement was to be accepted, surely the PAM document could have clearly stipulated such important aspect as in other positions, e.g. the principal position (that the candidate must have 7 years’ actual teaching experience). Further, nowhere in the advert it is specifically stated that one of the duties of the DCES: CM would be to manage principals.
7.6. It is undisputed evidence that prior to his appointment to the advertised position, the 2nd respondent occupied several managerial positions, principal, acting principal, deputy principal and head of department, for total period exceeding 8 years. The 2nd respondent experiences are in line with PAM document and the advert requirement of 8 years’ experience in the educational field or 8 years related experience.
7.7. In Observatory Girls Primary School & another v Head of Dept: Dept of Education, province of Gauteng, Case No 02/15349, [2006] JOL 17802(w), the Court held that one does not go digging to find point to stymie the process of appointing suitable candidates to teaching positions.
7.7. The Collective Agreement No 3 of 2016 ELRC Guidelines-Promotion Arbitrations provides that an employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualification and experience. He must allege and prove that the decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.
7.8. Much of the applicant’s evidence consisted of his past experiences and the fact that he successfully acted in the position, which were irrelevant to the issue in dispute. From the evidence submitted by the applicant it is clear that he is/was probably aggrieved after not being appointed to the position despite having successfully acted in the position for almost 12 months. In Noonan v SSSBC and others [2012] 33 ILJ 2597(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.
7.9. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision not to appoint him to the position of DCES:CM was procedurally and substantively unfair.

8. AWARD

8.1. The applicant’s application is dismissed

ELRC COMMISSSIONER: NICHOLUS SONO
18 FEBRUARY 2026