IN THE ELRC ARBITRATION
BETWEEN: ELRC 545-23-24GP

NATALIE SAAL “the Applicant”
and

DEPARTMENT OF EDUCATION – GAUTENG “the Respondent”

NATASHA NIEWOUDT “the 2nd Respondent”

ARBITRATION AWARD

Case Number: 545-23/24GP
Date of award: 18 July 2024
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
1. DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 20th of February 2024 and proceeded as such. Both parties were present, the applicant, Natalie Saal was represented by Mr. MNS Dawson the Union Official of PSCU and the First Respondent, Department of Education: Gauteng was represented by Mr. Leka Mogodielo the Employee of the Respondent and the Second Respondent Ms. Natasha Niewoudt was represented by Mr. Hanno Steenkamp.

1.2. The parties agreed to a face-to-face hearing to mitigate against postponements due to network and load shedding issues .

1.3. The arbitration was finally concluded on the 28th June 2024

1.4. The Applicant commenced with her evidence reluctantly.

1.5. Before the start of the arbitration process, the Applicant submitted here bundle of documents which was later marked Exhibit “B”, the Respondents also submitted their bundle of documents which was later marked Exhibit “A”. Further documents were submitted and marked Exhibits “C”, “D”, “E”, accordingly.

1.6. The parties agreed to file their closing arguments by close of business on the 3rd July 2024. Respondents 1 and 2 agreed to submit one closing document.

1.7. The submissions of both parties were carefully considered, but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.
2. PRELIMINARY ISSUES
2.1. Before the start of the arbitration process, the representative of the Applicant raised an objection stating that although this is an Unfair Labour Practice matter, they were insisting that the Respondents had a duty to start. Both parties were given an opportunity to address the Commissioner and a ruling was made dismissing the application and the Applicant ordered to commence with its evidence.
2.2. The Applicant reluctantly commenced with its evidence.

3. BACKGROUND
3.1. The Applicant Natalie Saal is an employee of the Respondent, employed as an Educator at Laerskool Fleur Primary since 2008.
3.2. The Applicant responded to an advertisement for a vacant HOD position.
3.3. She qualified for the position and was the preferred candidate for the position after the first interview. She was again invited to attend yet another interview following an unprocedural grievance procedure referred by the Second Respondent Ms. Natasha Niewoudt.
3.4. The Second Respondent was the preferred candidate after the second interview.
3.5. Dissatisfied with her non appointment, the Applicant referred a dispute to the ELRC for unfair labour practice.
3.6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labor Relations Act 66 of 1995 (LRA.)
3.7. Given the above, the Commissioner is required to determine whether the first Respondent committed an unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 when it failed to promote the Applicant to a post of HOD(TS72ED1031) as per page 12 of Bundle A and if so the appropriate relief.

4. APPLICANT’S EVIDENCE AND ARGUMENTS

4.1. The Applicant testified under oath and stated that after completing her matric, she attended the University of the Western Cape and obtained her BA degree. She enrolled for a PG Certificate in Education Intermediate and Senior grade 4-9. Her theme subjects were Maths, Natural Science, Technology, Languages, (English and Afrikaans), EMS (Economic and Management Sciences) Life Orientation Social Sciences. As an educator you get to specialise in Early Childhood Development (Grade R) then you get another specialization Bachelor of Education Foundation Phase which qualifies you to teach Grade 1 (One) to 3 (Three). Then there is a Bachelor of Education Intermediate and Senior Phase which qualifies you to teach grades 4 (four) to 9 (nine). The last Specialization being Bachelor of Education FET Further Education and Training This qualifies you to teach Grades 10 (ten) to 12 (twelve).

4.2. She testified that she is qualified to teach grades 4 (four) to 9(nine).
4.3. She testified that there were two (2) HOD positions and one became vacant. She testified that she was currently acting as a Departmental Head.
4.4. She testified that in 2019, the two (2) HOD’s felt that the work was too much, the then Principal requested that SGB to appoint a third (3) Acting HOD. Permission was granted, interviews were done and the Applicant was appointed in the School Governing Body HOD position.
4.5. She testified that the 2nd Respondent Ms Niewoudt was a post level one educator.
4.6. She testified that HOD’s have to undergo further training and that being an SGB HOD and Government Department HOD differs in terms of salary. SGB HOD is paid a stipend however a Dept HOD is given a salary notch.

4.7. She testified that the HOD position was advertised in 2022, she applied. She qualified to teach all the subjects. She has an early childhood development framework in Education and foundation phase certificate. The second Respondent on the other hand is qualified to teach grades R to grade three (3).
4.8. She testified that the second Respondent applied for the position as well, however she was not shortlisted.
4.9. At the interview she was able to answer all the questions related to policies, legislation. She was the preferred candidate.
4.10. The second Respondent lodged a grievance with the Department, where she indicated that she had been acting in the same position for nineteen (19) months. However over and above acting in a position, she had to meet the minimum requirements and as far as she knew Ms Niewoudt could not teach the required grades.

4.11. She complained that she was not called to be part of the grievance as a preferred candidate. She only got to know about the grievance at the strategic planning after it was raised by the SGB Chairperson.
4.12. She testified that she was prejudiced by the way the grievance was conducted. After the grievance the position was not advertised, they merely conducted a shortlisting.
4.13. On the 23rd of October she was called by the Principal and informed that she did not make it and that the second Respondent got the position, he continued to assure her that he still needed her at the SMT.
4.14. She reiterated that she is teaching some of the subjects (Social Science and Natural Science) that are required and that she has not taught the other subjects because of the school needs although she has the qualification.
4.15. She reiterated that Ms Niewoudt was currently teaching Maths’s grade 7 and Social Science grade 5. After the HOD was requested to act in the Deputy Principals position, she assisted in teaching however she did not take all the responsibilities of the HOD. She stated that she was part of the SMT and that is where the decision was taken.

4.16. She reiterated that she started acting in the HOD position in 2019 and she signed a contract in 2020, when the contract expired, she was asked to continue. She was not paid by the Department, she only received a stipend, however in 2022 the stipend was stopped. She made enquiries with the Principal Mr Jacobs and they were told that they would all receive the same amount which was R750.
4.17. The Second Respondent put to the Applicant that according to page 84 Ms Niewoudt was qualified to teach the subjects as they appear on the advertisement.
4.18. The Applicant reiterated that the second Respondent lodged a grievance only because she had been acting in the position, nothing was said about her qualification.

5. FIRST WITNESS FOR THE APPLICANT
SARAH JANE SMITH (Post level 1 Teacher at Laerskool Fleur Primary

5.1. She testified that she was a scribe during the first interview.
5.2. Part of her responsibilities were to arrange the shortlisting process with the selecting panel. Communicate with the shortlisted individuals, arrange interview dates, set up the file which will be submitted to the Department.
5.3. She testified that one of the reasons the second Respondent was not shortlisted for the first interviews was that according to criteria the candidates had to have the relevant qualification (Intermediate and Senior phase) she was excluded because she did not have the qualification. No one in the panel argued that she had to be included.
5.4. One of the SGB members complained that the Principal should not be part of the second panel however the Principal remained.
5.5. She testified that none of the candidates that were called for the first interview made it in the second interview except the Applicant.

5.6. She reiterated that the Principal would know why the second Respondent was not part of the candidates that were called for the first interview.
5.7. She reiterated that the second Respondent did not meet the criteria.
5.8. She testified that around February 2023 at the strategic planning meeting the Departmental official mentioned that a grievance had been lodged, a week or two later they were informed that a panel had to be reconstituted.

6. RESPONDENTS EVIDENCE AND ARGUMENTS
1st Witness for the Respondent
LLOYD JUSTIN JACOBS The Principal
6.1. This witness testified under oath and stated that he is the Principal of Laerskool Fleur. He testified that he has 32 years’ experience as an educator and 7 years as a deputy Principal.
6.2. That there was a vacancy due to the resignation of Mrs Annette where the second Respondent acted. Annette took the position of Acting Deputy Principal when he was a caretaker Principal at Lodium. The second Respondent was appointed in the position of Annette who managed the vacant post. This was an internal arrangement. She taught Mathematics grade five (5) and six (6).
6.3. He confirmed page 1 of Bundle “B” to be the advert placed on vacancy list. He confirmed that there was a shortlisting by the panel which adhered to policy.
6.4. He testified that as the Principal he represented the Department and the incumbent would be reporting to him therefore he had to part of the process.
6.5. He testified that Niewoudt had not made it to the shortlisted number because she did not meet the criteria because she was qualified for foundation phase.

6.6. After the interview the panel deliberated and recommended three (3) delegates. The recommendation was filed with the department; however, the three (3) candidates did not know anything at that point.
6.7. Before the results could be announced, they were informed by the Department that a grievance had been lodged. They were given dates to attend the grievance, the Chairperson of the selection and interview Committee, the Principal as well as the person that lodged the grievance.
6.8. At the grievance meeting he was asked about the Collective Agreement, he stated that he was not aware of the clause in the Collective Agreement which states that a person who has been acting in the post for over a year must be shortlisted.
6.9. The process had to be re-done, only as far as shortlisting and interview, not advertising.
6.10. The SGB recommended that a new panel had to be appointed for fairness. A new panel was established and as the Principal he was still part of the panel. The results of the second interview were ratified by the District Director. The second Respondent was called in to sign the contract.

6.11. He was satisfied that they had not followed the process the first time around and the second Respondent was unfairly excluded.
6.12. All the individuals that form part of the panel had to sign a confidentiality form, so no employee should have been informed before ratification by the District Director.
6.13. The second Respondent was the preferred candidate after the second interview, the Principal stated that he brought her to sign the appointment letter.
6.14. He confirmed that the second respondent complied with the criteria because her experience automatically qualified her to be shortlisted.
6.15. He stated under cross examination that at the first interview there was no Human Resource personnel present, however there was during the second interview to give proper guidance.
6.16. He conceded that there was a complaint by Dr Hobololo about his participation in the second interview, however his view was that the incumbent would report to him, therefore he had to be part of the second interview.
6.17. The witness conceded under cross examination that the second Respondent did not qualify to teach grade seven (7). He conceded further that the second Respondent was helping out in that position.
6.18. He stated that he could not remember if she had produced anything to demonstrate that she qualified to teach grade seven (7). He stated that he was convinced because of her experience.
6.19. The witness conceded that he gave the second Respondent a name and a number of a person to talk to about her grievance
6.20. He conceded that the panel was in agreement that the second Respondent did not meet the criteria because she did not possess the minimum requirement.

6.21. He conceded that the second respondent lodged a grievance because she had been acting in the position for over a year, he conceded that the policy states that “Provided she meets the minimum requirements”
6.22. He conceded that he raised the issue of the exclusion of the second Respondent. However, he denied that he informed her about the results or that he informed her to lodge a grievance.
6.23. He conceded that there was nothing wrong with the exclusion of the second Respondent from the shortlisted candidates.
6.24. He conceded that at the grievance, the second respondent did not produce any document to demonstrate that she had the minimum requirement.
6.25. He conceded further that the Second Respondent did not have any contract signed for the Acting position.
6.26. He stated that the second Respondent was part of the SMT and therefore she would have been aware that she was not shortlisted on her own.

7. The 2nd Witness for the Respondent
NATASHA NIEWOUDT
7.1. She testified under oath and stated that she has been a teacher at the same school for the past seventeen (17) years. She is qualified in early childhood Development and Foundation Phase meaning she could teach grade one (1) to grade three (3).
7.2. The witness referred to page 1 and 2 of bundle “E” and testified that she met the minimum requirement she could teach Mathematics from grade “R” up to grade 12, she majored in Mathematics.
7.3. She testified that she became aware of the shortlisting at the SMT meeting when Mr Jacobs informed the meeting that shortlisting would take place on the 3rd of September and the interviews would take place on the 10th September, she had not received the invitation so she knew that she was not shortlisted. Two days before the interviews, she contacted her Union and she was advised to lodge a grievance. She approached the Principal and asked him who was the right person to contact at the Department, and she was given the name of Mr Marakalla.
7.4. She was advised to fill in the grievance form and email it to the Department, the Principal and he Chairperson of the SGB.
7.5. She started acting during Covid in 2021, Ms Annette Van Rheede the Departmental Head for Mathematics had to fill the position of Acting Principal, she was requested to take over Departmental Head duties. She was asked because of her experience in teaching Mathematics.

7.6. She testified that the Acting HOD focused on Mathematics grade 4 to 7, Natural Science grade 4 to 6, Technology Grade 7, Life Orientation grade 7, EC Man Science grade 7.
7.7. She testified that she has the requisite experience teaching Maths Grade 4 to 7 and the Qualification to teach Maths up to grade 12. She has been acting in the position for over a year controlling the required subjects.
7.8. She testified that the Chairperson indicated at the grievance that she did not know about the Collective Agreement.
7.9. She testified that the Applicant was Acting Departmental Head for languages, she has known the Applicant for over sixteen (16) years now and she has never taught mathematics
7.10. Under cross examination the witness stated that the Principal informed them at the SMT meeting that he would not be available on the 3rd and 10th September because of the shortlisting and interview appointments.

7.11. It was put to the witness under cross examination that she did not indicate on the grievance that she qualified for the position because she had only acted in the position, she did not have the requisite qualification.
7.12. It was further put to the witness that she was informed by the Principal that she was not shortlisted as they smoke together, and the Principal advised her to lodge a grievance, and gave her the details of the person to contact at the department and that is why there was a paper in the Principals handwriting with the name of Mr Marakalla.
7.13. The witness conceded that she did not produce any document to demonstrate that she is qualified, she indicated that she could teach mathematics in the application form.
7.14. She conceded that her certificate speaks of Early Childhood Development ad Foundation Phase and nothing about Mathematics
7.15. She conceded that she had not given the shortlisting panel enough to shortlist her on. She therefore conceded that the did nothing wrong.

7.16. She stated that she felt it was unfair being in that position for over a year and not getting an opportunity to be interviewed.
7.17. She stated that she had to submit her qualification, her ID copy as well as SACE document, she submitted her Bachelor’s Degree foundation phase and Early Childhood Development.
7.18. She conceded that what she submitted did not give an indication that she could teach grade 7.
7.19. It was put to the witness that according to the PAM document, she had to have a letter from the Department confirming that she is acting in that position.
7.20. She confirmed that she received a section 38 Stipend amount but had no letter of appointment in the HOD acting position.

7.21. She acknowledged that the Collective Agreement says if you have been acting in a position longer than a year and meeting the minimum requirements.
7.22. The witness stated that she finished her degree in 2006 and got her certificates in 2007, she lost her original documents when she moved.
7.23. She conceded that the documents Exhibit “E” were never submitted with her application nor were they submitted during her grievance. The documents only came in November 2023.

8. The 3rd Witness for the Respondent
JOHN MARAKALLA: The Deputy Chief Education Specialist. (Labour Relations)
8.1. He testified that he was the Chairperson of at the grievance proceedings for Ms Niewoudt.
8.2. He testified that when they receive the grievance firstly, they check if the grievance is valid and can be entertained. They then request a recommendation file to get the credentials of the selection panel for the purposes of inviting them to the meeting.
8.3. The aggrieved party is given an opportunity to state their case, then the selection panel responds. The Chairperson examines the process followed and then make a recommendation to the District Director who then takes a decision then communicates it to the parties. The decision of the District Director is binding on everyone.
8.4. In this particular case, Ms Niewoudt lodged a grievance in terms of Chapter G of the PAM where she indicated that she had not been shortlisted for a post she had been acting on. Her grievance qualified to be heard.
8.5. It was established that the selection had not been in line with policy, the Collective Agreement which aligns the process of shortlisting. Ms Niewoudt had been acting in the position for over a year. It was an oversite not to select her for an interview.

8.6. The recommendation was for the process to be redone from shortlisting to interview. Re-advertising applies only where no one meets the criteria.
8.7. Not everyone gets called to the grievance, only the aggrieved party and the Chairperson of the selection and interview Committee get called to the grievance. The Applicant did not have to be called because she was not the aggrieved party.
8.8. The witness stated that he took his own notes during the grievance procedure and such notes were in his office. That he didn’t know Ms Niewoudt before the grievance procedure.
8.9. There was a lot of back and forth about the files containing the information on the grievance process, the Recommendation file and the Grievance files, none could be made available at the request of the Applicant.
8.10. The witness was not able to answer if he had seen how many of the selected individuals had the required qualification.

8.11. The witness could not recall whether the second respondent had produced anything to show that she had been acting in the position.
8.12. The witness stated that there were union officials at the grievance however the minutes stated that there was no Union to advise.
8.13. The witness was evasive, refused to answer questions in certain instances.
8.14. The witness conceded that the second respondent was not selected because she did not meet the criteria. He conceded that only the academic transcript showed she had mathematics and the academic transcript was not submitted during the grievance process.
8.15. The witness conceded that he did not make enquiries relating to her acting in the position for more than a year because it was not disputed.

8.16. It was submitted that the Principal was the one advocating for the second respondent that is why the issue of her acting was not investigated further.
The respondents closed their case.
9. The Applicant made an application to recall witnesses who were lined up to be called by the respondent but never called for the purposes of rebutting certain evidence. Application was granted and arrangements were made to recall the two witnesses.

10. DR BONGIWE HOBOLOLO: SGB CHAIRPERSON

10.1. She testified under oath and stated that she was the Chairperson of the SGB.
10.2. She testified that the criteria were guided by the Principal.
10.3. They came across Ms Niewoudt’s application and she lacked on the qualification required, she could not quite recall what her qualification was, what she submitted was not what was required for the position at the time of the screening and that is why she was excluded.
10.4. She confirmed that at the grievance she asked why the second Respondent was allowed to act in a position for which she was not qualified. As a panel they had looked at everything and found gaps. At the grievance they made as if acting was the only requirement, it was not married with the qualification
10.5. The witness confirmed that in the interview, the Applicant was the best candidate by far.

10.6. She testified that in her eyes, as a panel they had not done anything wrong by excluding the second Respondent.
10.7. She testified that she was not part of the second process.
10.8. She testified that the academic record is not used when applying, none of the other candidates had included academic records. The second respondent had indicated that she had a degree in Early Childhood development and they were looking for intermediate and Senior phase.
10.9. A person gets selected according to the information she has submitted and the second respondent did not have the minimum qualification to teach the subjects and was excluded. Jacobs pleaded for her because she had been actin in the position.

11. PAULA GALEGO: Chief Director Tshwane Region
11.1. She testified under oath and stated that she is the previous District Director 2021-2023
11.2. She testified that page 29 bundle “B” was written by her. That they would get a recommendation from the DGC and then after careful consideration would make that outcome of the grievance lodged.
11.3. She testified that they look at the due process and consider the recommendations of the DGC, then make sure the outcome of the grievance is shared with all concerned.
11.4. Her understanding at the time was that a person who qualified to be shortlisted was not and therefore the outcome was for the process to be redone.
11.5. She testified that if a person has been acting in a position for over a year and has the necessary qualification than that person ought to be given an opportunity to be interviewed. The assumption is that if a parson has been acting in a position, that person must be qualified to be in the position.

11.6. She testified that she does not check for the qualifications, she trusts the integrity of her team to verify and confirm on her behalf. The Department has accountability structures, there is no way the District Director can verify all the documents brought before her. Verification and qualifications are done by HR in their systems.
11.7. She was satisfied at the time that the Collective Agreement had not been complied with and thus her decision.

12. ANALYSIS OF EVIDENCE

12.1. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour relations Act (the LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the respondent amounted to an unfair labour practice as defined and distilled from the applicable jurisprudence and as envisaged in the law.
12.2. Section 186(2)(a) of the LRA reads as follows: Unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissal for reasons relating to probation) or training of an employee or relating to the provision of benefits to an employee.
12.3. I am required to determine whether the First Respondent acted unfairly or not in nullifying the first interview and whether it acted fairly or not during the grievance procedure and whether it acted fairly or not in appointing the second respondent into the HOD position.
12.4. In the present matter the Applicant applied for the position which she was qualified for, went through an interview process and was the preferred candidate before the appointment was ratified there was a grievance lodged which nullified the first interview leading to a second shortlisting of the candidates and the second interview which saw the Applicant not being appointed.
12.5. On the side of the Applicant two witnesses were called. The first witness being the Applicant who demonstrated that she is qualified for the post as per the advertisement. In her evidence she established that after the first interview she was the preferred candidate, that the Second Respondent did not submit the requisite qualification to be considered or selected, that at the grievance hearing, the second Respondent did not submit the requisite qualification to demonstrate that she should have been selected in the first place.

12.6. The second witness Sarah Jane Smith who established the second Respondent did not meet the minimum requirements which is the Intermediate and senior phase qualification. She confirmed that the Applicant was the preferred candidate after the first interview. The Principal insisted on becoming part of the second panel even after it was agreed that a new panel would have to be constituted.

12.7. The Chairperson of the SGB Dr Hobololo, who was a rebutting witness, established that the second respondent had been excluded because she did not meet the minimum requirements, that she raised the issue of her qualification at the grievance but was informed that Collective Agreement had not been complied with.
12.8. The District Director Paula Galego who was also a rebutting witness established that there was no qualification submitted that she made the recommendation to redo the process based on the fact that the second respondent had been acting in the position, verification and qualification should have been done.
12.9. The Second Respondent demonstrated through her academic record that was dated November 2023, that she is qualified to be appointed, she did not have such documentation at the time of shortlisting nor did she submit it at the grievance process. The only time the academic record was submitted was during the arbitration. The only qualification submitted was that of Early Childhood development and Foundation phase which did not qualify her for the position for which she had applied.
12.10. In the matter of Aries v CCMA and others (2006) 27 ILJ 2324 (LC) our Labour

12.11. Court held that there are indeed limited grounds upon 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 be curtailed. It ought to be interfered with only to the extent that it can be further demonstrated that the discretion was not properly exercised. The court further held that an employee can only succeed in having the exercise of the 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.
12.12. Mrs Nieuwoudt was not qualified to teach intermediate or senior phase subjects or manage a department as she did not have the teaching specialisation and management qualifications and this was a requirement for the position.
12.13. Mrs Saal was qualified to teach both intermediate and senior phase as per her qualifications
12.14. She was further qualified to manage and head departments as she had been doing so for 8 years and had obtained an honours degree in education management permitting her to do so
12.15. In this case I am satisfied that at the time the Applicant was better qualified than the Second Respondent.

12.16. With regards to the grievance process being dogged by material irregularities, the Applicant should not be prejudiced by the inefficiencies of the Respondent. In the grievance hearing the chairperson should have established first whether the respondent had the requisite qualification before he made the recommendation to the District Director. The fact that it was not verified whether the aggrieved had the letter of appointment to act, whether the aggrieved had the qualification required for the position is concerning.

12.17. In the circumstances it appears to me the Applicants version is more probable than that of the Respondents, and because she had the onus this means that she has discharged the onus and her version has been proved for this reason the Applicants claim must stand.

12.18. As a legal concept unfairness cannot exist in abstraction. Therefore, an applicant in the promotion dispute also needs to establish a causal connection between the alleged irregularity or unfairness and the failure to promote. To do so she needs to show that, but for the irregularity or unfairness she would have been appointed to the post. This necessarily means that she must show that she was the best of all the candidates who applied for the position.
12.19. Whether an employee also needs to prove that she was the best candidate in order for an arbitrator to order that the process must be repeated its unclear. In KwaDukuza Municipality vs. SALGBC where a post was filled without following the collectively agreed procedures for advertising, the Court did not order the process to be repeated but merely ordered R5000 compensation. The possibility of repeating the process was however never raised.
12.20. In the absence of any direct Labour Court authority on the point, I am however prepared to accept that in the event of a serious procedural irregularity, it is indeed possible for the arbitrator to order that the process must be repeated without it being necessary for the Applicant to show that she is indeed the best candidate or that she would necessarily have been appointed had it not been for the irregularity. This however does not mean that such orders should be made indiscriminately simply because there was some form of procedural irregularity.

12.21. Two witnesses testified in this regard, Sarah Smith and Dr Hobololo testified that the Applicant was the best candidate in the first interview.
12.22. Ordering that the process must be repeated is a drastic remedy that disrupts the lives of the learners and educators. It is therefore my view that in an unfair labour practice dispute relating to promotion, an arbitrator must order that the process must be repeated unless persuaded that the Applicant stood a realistic chance of being appointed. This is a sensible approach because it not only protects the rights and interests of the aggrieved educator, but also the educators who have gone through the selection process and have a realistic chance of being appointed.

12.23. I accordingly make the following award

13. AWARD

13.1. In the premise I make the following order

13.2. There was unfair conduct by the first Respondent in respect of the decision to appoint the second Respondent into post number HOD(TS72ED1031) at Laerskool Fleur Primary School. The first Respondent committed an unfair labour practice.

13.3. The decision of the First Respondent to appoint the Second Respondent into the above mentioned position is hereby revoked with effect from 31 July 2024.

13.4. The Applicants claim stands.

13.5. The respondent is ordered to repeat the process from the shortlisting stage.

GCINA MAFANI
Arbitrator 18 July 2024
ELRC 545-23/24 GP