IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case no: ELRC7-25/26GP

In the matter between:

CEBILE MAUREEN SIMELANE
(Union / Applicant)

And

DEPARTMENT OF HIGHER EDUCATION & TRAINING (SOUTH WEST GAUTENG TVET COLLEGE)
LULEKA MNQANQENI (2nd RESPONDENT)
(Respondent)

 
DETAILS OF THE HEARING

1. The matter was heard over three sittings with the last sitting being on 20 February 2026. The Applicant, Cebile Maureen Simelani was represented by Themba Mntameka, an official from NEHAWU while the First Respondent was represented by Nqobule Zondi from the Respondent’s Labour Relations Department. The Second Respondent Luleka Mnqanqeni also attended the proceedings and was unrepresented. The proceedings were recorded digitally and in writing.
2. The Applicant referred an alleged unfair Labour Practice Dispute related to promotion in terms of section 186 (2) (a) of the Labour Relations Act no 66 of 1995 (as amended) (LRA), to the Council.

ISSUE TO BE DECIDED

3. Whether the position ultimately occupied by the successful candidate differed materially from the position that was advertised.
4. If so, whether the Respondent acted unfairly by advertising the post as a Senior Lecturer: Business Studies while appointing a candidate to a role that encompassed responsibilities relating to both Business Studies and Financial Management.
5. Whether the promotion process denied potential candidates a fair opportunity to compete for the position actually filled.
6. If an unfair labour practice is established, I must decide what constitutes appropriate relief.

BACKGROUND

7. The dispute arises from the Respondent’s decision to advertise a vacancy for the position of Senior Lecturer: Business Studies at the Roodepoort Campus.
8. Prior to the advertisement of the post, the Applicant had acted as Senior Lecturer Business Management and Financial Management programmes. The Applicant did not apply for the advertised position as it was anticipated that a Senior Lecturer post for Financial Management would be advertised separately. Following the recruitment process, the Respondent appointed a candidate to the position of Senior Lecturer: Business Studies.
9. The Applicant contends that the successful candidate was subsequently appointed into a role that in practice encompassed responsibilities relating to both Business Studies and Financial Management, and that the promotion process was therefore unfair. The Respondent disputes that an unfair labour practice occurred. The Applicant is a Post level 1 lecturer and was employed by the Respondent on 1 February 2012.
10. The Second Respondent participated in the proceedings.

SUMMARY OF EVIDENCE AND SUBMISSIONS
The Applicant’s evidence

11. The Applicant Simelane Cebile testified that she is a lecturer for Financial Management and Business at the college’s Roodepoort campus. She indicated that historically the Business Management and Financial Management programmes had functioned together and that staff were accustomed to working across both programmes. She testified that she had at one stage been appointed in an acting capacity as a senior lecturer in the Business Management/Financial Management. covering both programmes. The acting appointment arose because there was no permanent incumbent occupying the post at that time.
12. Ms Cebile testified that a vacancy was later advertised for the position of Senior Lecturer Business Studies in January 2024, she did not apply for the position. According to her evidence, the successful candidate, Ms Mqanqeni who applied for that position was ultimately appointed into a role that in practice extended beyond Business Studies and also affected the Financial Management programme as a Senior Lecturer Business Management/Financial Management. She testified that this created uncertainty within the department because the scope of the role appeared broader than what had been advertised. She testified that she had not been given a opportunity to apply, had the post been properly advertised as Business Management/Financial Management, she might have considered applying as her expertise lies in Financial Management.
13. During cross‑examination Ms Cebile confirmed that the college management had the authority to determine the structure of programmes and posts within the institution. She was questioned regarding consultations and internal communications relating to the management of the programmes and the advertisement of the post. She acknowledged that consultations had taken place but maintained that the role ultimately performed appeared broader than the advertised post.
14. In re‑examination she reiterated that the programmes had historically functioned together and that the concern was that the role performed after the appointment did not correspond with the post that had been advertised.
15. The Applicant’s second witness was Moki Martin Molefe who testified that he was A PL! English Lecturer and a NEHAWU shop Steward. He stated that he was employed by the Respondent as a Post Level 1 English lecturer at the Vanderbijlpark Campus. He indicated that he had been employed at the campus for several years and was familiar with the organisational functioning of the campus and the programmes offered there.
16. He was also aware of the issues affecting the Business Management and Financial Management programmes and was a part of the meeting regarding irregular appointments. According to his evidence, these programmes had historically been closely linked in their functioning within the department. He testified that staff within the department worked across the programmes and that the programmes were not historically managed as entirely separate structures until the advertisement of the business management senior lecturer post.
17. According to his evidence, the post was advertised specifically as a Head of Business Studies, and the advertisement did not state that the post would include responsibility for the Financial Management programme.
18. Mr Molefe testified that, following the recruitment process, the successful candidate was appointed to the advertised post. However, according to his evidence, once the successful candidate assumed the position, the role performed appeared to extend into the Financial Management program and she became a senior lecturer Business Management/Financial Management.
19. The witness testified that he had raised the issue with Ms Dhlamini as to why they wanted to exclude the Applicant and appoint Ms Mqanqeni as the senior lecturer without following the recruitment process. Several meetings were held and it became clear that the Principal was the one giving instructions regarding the appointments
20. He further testified that the situation created dissatisfaction among staff members, because the practical scope of the role appeared to extend beyond the post that had been advertised. According to his evidence, staff members understood the role performed by the successful candidate to affect both programmes, which was inconsistent with the advertisement for Head of Business Studies.
21. During cross-examination Mr Molefe was questioned extensively regarding the documents and communications referred to in his evidence.
22. The witness confirmed that he was privy to communications involving the Campus Manager and the Deputy Principal related to the appointment of Ms Mqanqeni as the Senior Lecturer Business Management/Financial Management programme leadership and organisational arrangements within the campus. The witness confirmed that there had ben no advert for a permanent appointment in the post that the Applicant was occupying. Mr Molefe acknowledged that the Respondent, as employer, had the prerogative to determine how programmes should be organised and how posts should be structured.
23. He was asked whether the responsibilities exercised by the successful candidate might simply have arisen from operational requirements rather than from a broader appointment. Mr Molefe nevertheless maintained that, in practice, the successful candidate appeared to exercise responsibilities affecting both Business Management and Financial Management.
24. Mr Molefe confirmed that Ms Mqangeni remained involved in the Financial Management programme, but he maintained that the role of the successful candidate nevertheless appeared to extend beyond Business Studies in which she had applied.
25. Mr Molefe confirmed that his evidence did not suggest that the acting incumbent was automatically entitled to the post, but rather that the scope of the role ultimately performed appeared broader than the advertised post.
26. In re-examination Mr Molefe clarified that his evidence was not directed at challenging the employer’s authority to appoint a candidate. He reiterated that his concern was that the post that had been advertised was a Senior Lecturer Business Studies, whereas the role performed by the successful candidate appeared to extend into Financial Management.
27. He confirmed that the evidence he gave regarding the structure of the programmes and the responsibilities exercised by the successful candidate was based on his knowledge of the functioning of the department and his observations within the campus environment and he reiterated that the concern among staff was that the scope of the role performed after the appointment appeared broader than the position that had been advertised.
28. The Applicant’s third witness Lebogang Masango testified that he was employed as a Human Recourses Clerk and had knowledge of the staffing and management arrangements affecting the Business Management/Financial Management space.
29. He testified that the two programmes had historically functioned together. According to his evidence, although the vacancy was advertised as a Business Management position, the successful candidate Ms Mqanqeni performed functions that extended into the Financial Management programme.
30. During cross‑examination he was questioned regarding the employer’s authority to structure programmes and allocate duties among staff members. He accepted that the employer had such authority but maintained that the concern was that the role ultimately performed did not correspond with the post that had been advertised.
31. The Applicant’s fourth witness was Mr Thando Khuse who testified that he was employed by the Respondent as an assistant Director HR regarding the functioning of the Business Management and Financial Management programmes and the manner in which the department operated and was aware of Ms Mqanqeni’s appointment. The witness testified on the recruitment process when positions are advertised by the Respondent.
32. He stated that the Business Management and programmes were closely connected in practice and that the staff worked across the programmes. He testified that the successful candidate who was appointed to the Business Management post appeared to exercise responsibilities affecting both programmes as per the organogram that had been shown to him.
33. During cross‑examination he was questioned regarding the employer’s authority to determine organisational structures and allocate responsibilities. He acknowledged that management had such authority but maintained that the practical functioning of the role appeared broader than the post advertised.
34. The Applicant’s fifth and last witness was Mr Nditsheni Thomas Novhundwe who testified that he is employed by the Respondent as the HOD in the Business studies and Utilities at the Roodepoort Campus. He testified that historically the Business Management and Financial Management programmes functioned together and that the programmes were managed within a closely connected structure with one senior lecturer.
35. Mr Nonhundwe testified that the Applicant had previously been appointed in an acting capacity as the senior lecturer covering both Business Management and Financial Management. He testified that during the acting period the Applicant performed responsibilities associated with the leadership and management of both programmes. He testified that there was no permanent incumbent occupying the post at the time, which is why the acting appointment had been made. Mr Nonhundwe testified that the Respondent subsequently advertised a vacancy for the position of senior lecturer Business Studies. According to his evidence, the advertisement referred specifically to Senior Lecturer Business Studies and did not indicate that the position would include responsibility for the Financial Management programme.
36. He testified that following the recruitment process the successful candidate was appointed to the advertised post. However, according to his evidence, once the successful candidate assumed the role the functions performed appeared to extend beyond Business Studies and into the Financial Management programme.
37. Mr Nonhundwe testified that Ms Mqangeni continued to be associated with the Financial Management programme, but that the role performed by the successful candidate nevertheless appeared to affect both programmes. He testified that the practical functioning of the department did not reflect a strict separation between the programmes.
38. Mr Nonhundwe further testified that there were discussions within management structures concerning the organisation of the programmes. He referred to discussions and communications involving the Campus Manager and the Deputy Principal regarding programme leadership and the structure of the department. According to his evidence, these discussions related to the organisation of programme leadership and the filling of posts within the department.
39. Mr Nonhundwe testified that the role ultimately performed by the successful candidate appeared broader than the position that had been advertised. He further testified that the Applicant did not apply for the advertised post because there was an expectation that the leadership position for the Financial Management programme would be advertised separately.
40. During cross-examination Mr Nonhundwe was questioned regarding the historical structure of the Business Management and Financial Management programmes. He was asked whether there had been a formal decision by management to separate the programmes. Mr Nonhundwe testified that although discussions had taken place regarding the structure of the programmes, the practical functioning of the department remained closely linked.
41. He was referred to internal communications and documents, including communications involving the Campus Manager and the Deputy Principal concerning programme leadership. Mr Nonhundwe confirmed that such communications existed and that they related to discussions concerning the organisation of the programmes and the filling of posts within the department.
42. Mr Nonhundwe was questioned about the role of Ms Mqangeni in the Financial Management programme and whether she continued to perform responsibilities in that programme. Mr Nonhundwe confirmed that Ms Mqangeni remained associated with the Financial Management programme but maintained that the successful candidate nevertheless appeared to exercise responsibilities affecting both programmes. Mr Nonhundwe was questioned regarding the acting appointment previously held by the Applicant and whether such an acting appointment created any entitlement to permanent appointment. Mr Nonhundwe testified that his evidence was not that the acting incumbent was automatically entitled to the post, but rather that the scope of the role ultimately performed appeared broader than the post that had been advertised.
43. Mr Nonhundwe was also questioned as to whether the responsibilities exercised by the successful candidate might have arisen from operational requirements rather than from a broader appointment. Mr Nonhundwe maintained that, based on his observations of the functioning of the department, the role performed appeared to extend into the Financial Management programme. He further testified that the structure of the department and the functioning of the programmes did not reflect a clear separation between Business Management and Financial Management.

The Respondents’ case

44. Both Respondents closed their cases without calling any witnesses.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

45. This dispute concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA.
46. It is trite that employees do not have a right to promotion. What employees are entitled to is a fair opportunity to compete for promotion through a fair and transparent process. Promotion decisions fall within the managerial prerogative of the employer. However, that prerogative must be exercised fairly and in accordance with the principles of procedural fairness.
47. The central issue in this matter concerns the position that was advertised by the Respondent and the position that was ultimately occupied by the successful candidate. The Respondent advertised a vacancy for the position of Senior Lecturer: Business Studies. The recruitment process proceeded on the basis of that advertisement.
48. The evidence presented by the Applicant’s witnesses, including Ms Simelane Cebile, Mr Moki Martin Molefe, Mr Lebogang Masango, Mr Thando Khuse and Mr Nditsheni Thomas Nonhundwe, was largely consistent on a number of material aspects. Firstly, the witnesses testified that the Business Management and Financial Management programmes had historically functioned closely together within the department. According to their evidence, staff frequently worked across the programmes and the organisational structure of the programmes was closely linked.
49. Secondly, several witnesses testified that the Applicant had previously been appointed in an acting capacity in a senior role covering both Business Management and Financial Management. Thirdly, the witnesses testified that although the post was advertised as a Senior Lecturer: Business Studies, the successful candidate appeared in practice to exercise responsibilities that extended into the Financial Management programme and according to the organogram her position is a Senior Lecturer of Business Management and Financial Management.
50. The evidence of Mr Nonhundwe and Mr Molefe in particular suggested that the practical functioning of the department did not reflect a strict separation between the Business Studies and Financial Management programmes, and that the responsibilities performed by the successful candidate affected both programme areas.
51. The Respondent elected to close its case without calling any witnesses. As a result, no evidence was placed before me to explain the scope of the post that had been advertised or the responsibilities attached to the position after the appointment.
52. While the Applicant bears the onus of proving the existence of an unfair labour practice, the absence of evidence from the Respondent means that the evidence presented by the Applicant regarding the scope of the role ultimately performed was not materially contradicted.
53. The difficulty in this matter arises from the apparent discrepancy between the post that was advertised and the role that was ultimately performed. Where an employer advertises a vacancy, the advertisement must accurately reflect the nature and scope of the position to be filled. This ensures that potential candidates are able to make an informed decision as to whether they should apply for the position. If the role ultimately filled differs materially from the post that was advertised, potential candidates may be deprived of a fair opportunity to compete for the position actually filled.
54. The evidence before me indicates that the successful candidate was appointed to the position of Senior Lecturer: Business Studies, but that the responsibilities performed in practice extended beyond that programme and affected the Financial Management programme. The evidence also indicates that the Applicant did not apply for the advertised post because there was an expectation that the Senior Lecturer position relating to the Financial Management programme would be advertised separately. If the post ultimately occupied encompassed responsibilities relating to both programmes, the advertisement for Senior Lecturer: Business Studies did not accurately reflect the position that was effectively filled.
55. In such circumstances, the promotion process cannot be said to have afforded all potential candidates a fair opportunity to compete for the position actually filled. I therefore find that the Respondent acted unfairly by advertising the position as Senior Lecturer: Business Studies while appointing a candidate into a role that in practice encompassed responsibilities relating to both Business Studies and Financial Management.
56. This conduct rendered the promotion process procedurally unfair and accordingly constitutes an unfair labour practice relating to promotion. The appropriate remedy is therefore to restore fairness to the promotion process by directing the Respondent to re-advertise the position accurately reflecting the scope and responsibilities of the role.
57. This remedy corrects the procedural unfairness identified while respecting the employer’s prerogative to determine the structure of its posts and to appoint the most suitable candidate through a fair process.

AWARD

58. The Respondent committed an unfair labour practice relating to promotion.
59. The appointment of the 2nd respondent is set aside and the date from 31 March 2026.
60. The Respondent is directed to re-advertise the position accurately reflecting the scope and responsibilities of the role within 60 days of the date of this award.
61. The current incumbent may apply for the position should she so wish.

Dated at Johannesburg on this 17th Day of March 2026.

Nzwisisai Dandadzi