19 March 2026 -ELRC688-24/25WC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No ELRC688-24/25WC

In the Arbitration matter between:

Nokuthula Tshiwo Applicant

and

Education Department of Western Cape Respondent

ARBITRATION AWARD

Venue of arbitration: Virtually and at WCED District office, Kuils River
Dates: 11 April 2025, 17 July 2025, 11 February 2026, 12 February 2026 and 13 February 2026.

Parties present:
Arbitrator: Marlon Plaatjies
Applicant’s Representative: Mr. Mbasa Katywa (Maurice Phillips, Wisenberg Attorneys Incorporated)
Applicant: Ms. Nokuthula Tshiwo
Respondent’s Representative: Mr. Frederick Scholtz (Senior Employee Relations Officer)
DETAILS OF HEARING AND REPRESENTATION

[1] An arbitration proceedings were conducted on 11 April 2025, 17 July 2025, 11 February 2026, 12 February 2026 and 13 February 2026. The arbitration hearing was finalized 13 February 2026. The parties submitted their Heads of arguments by latest 26 February 2026.

[2] The Applicant, Ms. Nokuthula Tshiwo was represented by Mr. Mbasa Katywa, an Attorney from Maurice Phillips, Wisenberg Attorneys Incorporated. The Respondent, Education Department of Western Cape was represented by Mr. Frederick Scholtz, the Respondent’s Senior Employee Relations Officer.
[3] The proceedings were conducted in English and were manually and digitally recorded. Interpretation services were not required.

ISSUES TO BE DECIDED
[4] The Applicant referred a dispute to the ELRC in terms of section 182(2)(a) of the Labour Relations Act, 66 of 1995 (the LRA) – unfair labour practice related to promotion. I have to determine whether the Respondent committed an unfair labour practice in respect of the Applicant. Should I find that the Respondent committed an unfair labour practice, I have to determine the appropriative relief.
[5] The Applicant sought to be promoted / appointed to the position of Deputy Principal, alternatively to be compensated.

Common cause issues

[6] The following were regarded as common cause issues between the parties:
6.1 The Applicant was employed as an Educator at Nomzamo Primary School;
6.2 Her salary at the time of the dispute was R41 111.05 per month;
6.3 The Applicant’s maiden name was Mxesibe;
6.4 The School Principal of Nomzamo Primary school was supposed to upload the
Job Applicants’ documents on the system in respect of the position applied for;
6.5 The School Governing Body (SGB) conducted both interviews for Post 771 (the 1st interviews as well as the “re-run” interviews).
SURVEY OF EVIDENCE AND ARGUMENTS
[7] All relevant testimony was duly considered, but I only summarize the evidence relevant to my decision in terms of this Award, (Section 138 of the LRA, as amended).
THE APPLICANT’S EVIDENCE AND ARGUMENTS

The Applicant submitted a bundle of documents consisting of 68 pages, admitted as Bundle “A” (hereinafter referred to as “A”).
Ms. Nokuthula Tshiwo (the Applicant) testified under oath and her evidence was in essence, the following:

[8] She started working for the WCED during 2005. She worked as an Educator at Siyazakha Primary school in Phillipi for nine (9) years. She started at Nomzamo Primary school as Departmental HEAD (HOD) on 1 August 2016. She acted in the Deputy Principal position (Foundation phase) from January 2017 until 31 December 2024.

[9] She applied for the Deputy Principal position when the post was advertised in 2021 on bulletin 2 (post 771). She was shortlisted for the post and she attended the interviews on 1 September 2021. She underwent the Competency Based Assessment (CBA) in 2021. The was an email dated 6 March 2022 from Christal Myburgh (Officer at WCED E-Recruitment) to the Circuit Manager, Ms. Cherie Meyer – Williams. The subject of the email was “Filling of Deputy Principal posts: 770 (intersen) and 771 (FP): Nomzamo PS” The email stated the following:
“Good day Ms Meyer-Williams,
Nomination documents for the above-mentioned posts refer.
Allow me to share the following for the further attention of the SGB please:

…
Post 771 (Foundation Phase)
Please provide the ID and DOTS form of Ms Mxesibe.
I would advise the SGB to use the e-recruit invite to candidates in future to ensure the relevant documents are submitted.

[10] The Applicant stated that she went to do her fingerprints (DOTS Form) and she submitted her Identity document to the School Principal on the day after she went for the fingerprints. This was the second time she submitted a copy of her identity document (ID). She was not appointed to the position. She stated that she thought that the reason she was not appointed was because of her ID copy that was outstanding. She submitted her ID copy to the Chairperson of the School Governing Body (SGB) on the day of her interview. She had to re-submit it because the School Principal said she did not know what happened to the ID copy.

[11] Nobody was appointed to the post in 2021. She did not hear anything after submitting her ID copy to the Principal. The Circuit Manager told her around December 2012 that there was a back-log with filling the outstanding posts. The Principal called her to the office after the school re-opened in January 2023. The Principal told her that she was waiting on the appointment letter and that she did not know what the problem was at the Head Office.

[12] The Principal told them during a school briefing session in February 2023, that the school had two Deputy Principal posts (posts 770 and 771). The Principal told them that there was an appointment letter for post 770, but there would be a re-run of the interview process in respect of post 771. The Principal told them that the post would not be re-advertised but people who were already interviewed for the post would be interviewed again.

[13] The Applicant stated that she attended the interviews again in 2023 (re-run). They were approximately five (5) candidates who were interviewed for the post. She again submitted all her required documents after her interview on 9 June 2023. During the re-run there were two union officials present for observing the process. She again went to do the CBA after the interviews. She had to do it again due to the time that past since the last time she went to do the CBA. She never received the results for her CBA and the appointment of the position was not finalized during 2023. The Applicant stated that she asked the Principal for feedback on the position. The Principal told her that she uploaded all the documents on the system for the WCED and she did not know what was causing a delay in the WCED releasing the appointment letter.

[14] The Applicant stated that she never received the document on page 18 to 20 of “R”. It was a report by the Circuit Manager (Mr. Malgas), based on the grievance she lodged on 15 February 2024. It stated the following under the findings:
“3.1 1 September 2021: Ms Mxesibe attended the interview process for Post 771, Deputy Principal, Foundation Phase. However, the interview process had to be redone due to several irregularities and inconsistencies.
3.2 Post 770 – Deputy Principal, Inter-Sen Phase was also advertised in Vacancy List 2/2021. The appointment process was completed in APRIL 2023.
3.3 31 May 2023: Ms Mxesibe again received an invitation to attend the interview process for Post 771 which was conducted on 9 June 2023.
3.4 12 December 2023: Ms Mxesibe contacted Ms Malgas (Circuit Manager) requesting feedback with regards to the appointment process. The relevant documents were uploaded and the Directorate: Recruitment and Selection informed Ms Malgas that the appointment process was in progress.
3.5 22 February 2024: Ms Malgas explained that due to several delays and non-compliance to due dates, the post would be re-advertised, SADTU representative insisted that the appointment process for Post 771 VL 2/2021 should be completed as soon as possible. They are opposed to the re-advertisement of the post.
“3.7 04 June 2024: Directorate: Recruitment and Selection, Ms R van Rooi explained that the school failed to adhere to the Vacancy List deadline submission date. All outstanding nominations had to be submitted by 31 March 2024. The SGB is therefore required to re-advertise the post.

[15] The report stated the following under recommendations:
“5.1 The grievance procedure is completed and the matter is regarded as finalized. The vacant Deputy Principal post will be advertised.”

[16] The Applicant stated that the Secretary and the Chairperson of the SGB was responsible to upload her documents on the system. The Principal had a responsibility to ensure that the documents were uploaded by them. The Principal stated during a SMT meeting held during January 2024 that she uploaded all the documents on the system, but the problem was with Head Office. The Principal said that the documents which had to be uploaded were too many for the system. The Applicant stated that the reason she lodged a grievance (page 23 of “R”) was because she wanted to know whether she was successful in her application for the post, or not.

[17] The Applicant stated that she believed that she was nominated for the post after the re-run, because she was invited to go and do the CBA. One would not be invited to go and do the CBA if you are not nominated for a post. The Applicant stated that she did not know if there was more than one person nominated by the SGB to go and do the CBA. The Applicant stated that the Circuit Manager confirmed that she received all the hard copies in terms of the documents based on the re-run interviews conducted, but she could not do anything at the time, due to a moratorium that was placed on the Post. The Circuit Manager told her that there was a moratorium placed on the Post because of the grievance she submitted.

[18] Page 7 of “A” was an email from E-Recruitment dated 20 February 2024, in respect of Post 771 and which was addressed to the Circuit Manager and the School Principal and SGB. It stated the following:
“The nomination documents for the post cannot be processed due to the indicated outstanding documents and/or issues as indicated on the nomination documents screen.
Documents:
● All attendance registers/ confidentiality (non-disclosure) / conflict of interest
● Interview minutes
● Interview Score Sheets or Interview score summary, interview questions and practical
● Sexual offenders Register: Proof of application / certificate
● Short Listing Minutes
● Short Listing Score Sheets or Shortlist score summary including criteria
● Supporting docs: nominee 1*
● Verification Tool (WCED Representative Report)
Comment: Nomination REJECTED due to insufficient information. Please verify the information on E-Recruitment and ensure that all required documents are uploaded. A letter has been issued to your Circuit Manager in relation to the above. Remember to click the “Notify HR Button” once all the information has been uploaded.”

[19] The Applicant stated that there were three (3) people interviewed for the re-run of Post 771. It was herself and other two candidates. The Applicant stated that she was the only person nominated for the Post. The reason why she knew she was nominated was because she was invited to do the CBA and CBA is only when you are nominated for a post. She stated that she did not know whether she was the only person nominated for the Post. She did not know if the other two (2) candidates were also invited for the CBA. There was a meeting at the Circuit Office on 25 and 26 April 2025 where the WCED Recruitment and Selection Team assisted the schools who had problems with uploading documents on the system. The Applicant stated that the Principal did not attend the session but she later told the Applicant on 22 May 2024 that she struggled with uploading documents onto the system.

[20] The Applicant stated that there was another person currently acting in the Post (Deputy Principal – Foundation Phase). There was somebody acting from July 2025 until December 2025 and another person started acting during Janauary 2026. The Applicant stated that she acted in the Post from January 2017 until December 2024. She stopped acting in the Post because the Principal said the Post must rotate amongst the permanent Staff at the school. The Principal and the SGB decided who must act in the Post.

During cross-examination

[21] She stated that re-run referred to the candidates who were previously interviewed for the Post being interviewed again. She stated that the post was re-advertised after the grievance outcome recommended that it be re-advertised. The Applicant was asked to present proof that she was nominated by the SGB as the preferred candidate for the Post. She stated that she did not know whether she was the only person nominated to the Post by the SGB. She was asked if the WCED must appoint if they do not have documents forthcoming from the SGB. She stated that they cannot appoint if the documents are not there, but the WCED must deal with the person who failed to upload the documents on the system. The Applicant stated that she applied for the Post when it was re-advertised under vacancy list 3 of 2005. There were no interviews held yet based on the re-advertisement of the Post.

[22] The Applicant was asked if she knew what her results was for the CBA after the re-run. She stated that she did not know because the results were sent to the SGB. She greed that a CBA test was compulsory for a promotional Post. She agreed that the results of a CBA were confidential. It was put to the Applicant that the WCED had a discretion in terms of whether they want to appoint someone to the Post or not, after receiving the nomination from the SGB. She stated that the only time the WCED had a discretion to not appoint anyone was when the nominees did not qualify for the position.

Mr. Mzwandile Irvine Nkohla testified under oath as follows:

[23] He was employed as the Principal at Qatyana Primary School and he was also the Regional Treasurer of SADTU. He assisted the Applicant during her grievance process. He was part of the meeting held on 22 May 2024. Documents were not uploaded on the system during the re-run of the interviews. The Principal was responsible for uploading the documents. He stated that they told the Respondent representatives at the meeting that they requested the documents to be uploaded. They told the Respondent that they did not say that their member should be appointed to the position, but the WCED would at least be able to make a decision on whoever would be appointed, after the documents had been uploaded. He stated that they were informed during the meeting that there was a moratorium placed on the Post.

[24] He stated that there was negligence on the side of the school for not uploading the documents on the system.

During cross-examination

[25] He stated that he opposed the re-advertisement of the Post, because the documents were available and just had to be uploaded on the system. He agreed that the District Director had the discretion to re-advertise a Post or not. He was asked if he saw any document showing that the Applicant was nominated for the Post. He stated that he did not see such document. He stated that he never saw any written motivation from the SGB where the SGB motivated for the Applicant to be considered for Appointment in the Post.

THE RESPONDENT’S EVIDENCE AND ARGUMENTS

The Respondent submitted a bundle of documents consisting of 29 pages, admitted as Bundle “R” (hereinafter referred to as “R”).

Ms. Ntombizanele Nkibi testified under oath and her evidence was in essence, the following:

[26] She was employed as Assistant Director: Recruitment and Selection at the WCED from 1 June 2016. Should there be job applicants considered for nomination by the SGB, those applicants would be subjected to a CBA. CBA is compulsory for Deputy Principal and Principal positions. After the first interviews there were flaws identified. A decision was taken for the interviews to be re-conducted with the same shortlisted candidates. The interview process had to be re done due to several irregularities and inconsistencies (page 19 of “R”, bullet 3.1). Nkibi stated that a moratorium would be placed on a Post when there is a grievance lodged in respect of that Post. It is the responsibility of the Labour Relations Department to lift the moratorium, should such grievance be resolved.

[27] The SGB must nominate at least three (3) candidates for appointment to a Post. Should the SGB nominate less than 3 people, they have to write a motivation to the WCED in respect of why they were nominating less than 3 people. The documents which were submitted or uploaded on the system were incomplete. Once a full set of the documents had been uploaded, her department would check whether there was a fair procedure followed in respect of the interviews conducted. Nkibi stated that she did not know who was nominated for the Post, because the documents never reached her department as a result of it being incomplete.

[28] She stated that the delegated person at the WCED who decides on promoting a person to a Deputy Principal position is the Chief Director: People Management Practices, Mr. Matthys Cronje. After receiving complete documents and after checking everything, the Recruitment and Selection Team would proceed to Cronje for approval via different Deputy Directors and Chief Directors.

During cross-examination

[29] She stated that she did not know whether Nomzamo Primary School was represented at the sessions where they helped schools to upload documents on the system. She agreed that job applicants are not involved in uploading documents on the system. She was referred to page 7 of “A” where it stated “supporting docs for nominee 1*”. It was put to her that only one person was nominated. Nkibi stated that it did not really mean that. She stated that it could mean that the supporting documents of the other candidates were uploaded. Nkibi stated that it did not mean that a person would be appointed to the Post if that person was Nominee 1. It was put to her that the Principal was responsible to ensure that documents are uploaded. She stated that it was the responsibility of the Principal or whoever was mandated by the SGB to do that.
ANALYSIS OF EVIDENCE AND ARGUMENTS:

[30] In this matter the Applicant must prove that an unfair labour practice has taken place.

[31] In NEHAWU v UCT and others [2003] ILJ 95 (CC) See also Sidumo and another v Rustenburg Platinum Mines Ltd and others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) (handed down on 5 October 2007) it was held that: One of the primary objects of the LRA is to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution, including the right to fair labour practices enshrined in section 23(1) of the Constitution.
[32] In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) [2016] ZALCJHB 433 (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e., it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualifications and/or suitability for the position in question, against that of other candidates. The Court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
[33] In Department of Rural Development & Agrarian Reform, Eastern Cape v GPSSBC and others (2020) 41 ILJ 1321 (LAC) wherein the LAC held that the decision on the merits of an unfair labour practice stands to be reviewed in the light of whether it is one that no reasonable commissioner could reach. The LAC also held that Courts and Commissioners should be reluctant to interfere with an Employer’s decision to refuse promotion. The LAC also remarked that since there is ordinarily no right to promotion, Commissioners and Courts should be hesitant before appointing the aggrieved Employee to the post. Such deference, however, will be less compelling where the Employer has unfairly discriminated against an Employee or acted otherwise egregiously. Likewise, the remedy of reinstatement might be appropriate where it will cause no prejudice to another successful candidate because the post is vacant; or the Employee proves that but for the unfair conduct, s/he would have been appointed.
[34] In NEHAWU obo Manyana and another v Masege NO and others [2014] ZALCJHB 124 (handed down on 8 April 2014) the Court held that three principles must be considered in determining whether or not the Employer acted unfairly towards the Employee in relation to promotion. The principles are: (a) that the failure by an Employer or Institution to appoint a person to fill a position because of budgetary constraints is not irrational, arbitrary or capricious; (b) always defer to the Employer’s managerial prerogative; and (c) absence of an employment equity plan does not preclude an Employer to factor in employment equity considerations into its selection short listing and appointment policies.
[35] The Applicant’s case is that she applied for the position in 2021 and she was interviewed and went for the CBA. Nobody was appointed to the post and the WCED decided to conduct a re-run of the interviews, in other words, job applicants who were interviewed for the Post had to attend interviews again. She again went for an interview that was help based on the re-run. She again went to do the CBA because of the time that past since her last CBA. She submitted her documents to be uploaded on both instances, but her documents were not uploaded on the system.
[36] The Applicant’s case is that the Post was again not filled as a result of the documents which was not uploaded by the School Principal. The Applicant’s case is that she would have been appointed to the Post (Post 771) had it not been that her documents were not uploaded on the system. The Applicant’s case is that she acted in the Post from 2016 and she was nominated as nominee 1* by the SGB for the Post. The Applicant, during this arbitration was questioning the delay in filling the Post and regarded it as unfair. The Applicant’s evidence is that the post was re-advertised again in 2025 and she applied for the post, but nothing happened after she submitted her application.
[37] The Respondent’s case is that there were irregularities detected after the first run of the interviews, and therefore the interviews had to be re-run with the same applicants who attended the first run of interviews. The Respondent’s case is that there was no appointment made after the re-run due to documents which were not uploaded by the SGB. The Respondent’s case is that the SGB conducted the interviews and the SGB designated person would upload the documents on the system for assessment of the interview process by the WCED Recruitment and Selection Department. The Respondent’s case is that the Recruitment and Selection Department can only proceed with the next steps in the process, after receiving the completed uploaded docs from the SGB. The Respondent’s case is that the Post was re-advertised after the re-run interviews due to the fact that the SGB did not upload the required documents on the system, even after several enquiries and requests for them to do so.
[38] It appears from the evidence placed before me that no appointment could be made to the Post after the first run of the interviews, due to irregularities detected in respect of the interview process. A re-run happened and the Applicant formed part of these interviews. After the re-run interviews, the post could not be finalized as a result of the School Principal as an Ex Officio SGB member or any other delegated SGB member, not uploading the required documents in order to allow the WCED to follow the next required steps in finalizing an appointment to the Post.
[39] ELRC Collective Agreement 3 of 2016, which deals with ELRC guidelines for promotion arbitrations, and which was concluded in the Bargaining Council on 13 August 2016, states the following:
“29. It is only the conduct of an employer that can constitute an unfair labor practice. School governing bodies are not the employers of educators employed in terms of the Employment of Educators Act. Before a decision to appoint has been taken by the Head of Department as employer, based on the recommendation of the school governing body, the employer cannot be held responsible for any unfair conduct by a school governing body or interview committee committed during the recruitment and selection process (Reddy v KZN Department of Education & Culture (2003) 24 ILJ 1358 (LAC).
[40] It must also be noted that the Labour Court in Department of Education v GPSSBC and others (D 269/12) [2014] ZALCD 6 (handed down on 12 March 2014) stated that acting in a position does not give rise to an automatic right to promotion for that post.
[41] The Applicant, during this arbitration did not demonstrate or prove that she was not afforded a fair opportunity to compete for the post, or that the Respondent’s conduct was arbitrary or motivated by an unacceptable reason. The Applicant failed to prove that the Respondent committed an unfair labour practice.