19 March 2026 -ELRC808-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT FORT BEAUFORT
IN THE ARBITRATION
BETWEEN
SADTU OBO NOZIPHO YOSE APPLICANT
AND
DEPARTMENT OF EDUCATION – EC 1ST RESPONDENT
ASANDA MKULA 2ND RESPONDENT

ARBITRATION AWARD

CASE NO ELRC808-25/26EC
DATE/S OF HEARING 03/12/ 2025 & 23/02/2026
DATE AWARD 19 MARCH 2026
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (“LRA”) at the Department of Education offices in Fort Beafort on 03/12/2025 and 23/02/2026 at 09h00. Mr Paul Papiso an official from SADTU represented Applicant [ Nozipho Yose]. Ms Mkula the 2nd Respondent represented herself. Mr Sivuyile Peter an official, represented the first Respondent, (Department of Education Eastern-Cape).
The proceedings were electronically and manually recorded. The parties handed in bundle of documents in support of their cases. Both parties relied on documentary evidence and oral evidence. The Respondents bundle was named bundle A and Applicants bundle was named bundle B. The parties were given up until 03 March 2026 to file their closing arguments with the Council, the Applicant requested an extension because of the challenges with the laptop. An extension was granted. On 06 March 2026 the Council received the closing arguments from the Applicant. The closing arguments from the Respondent were received on 03/03/2026.

ISSUES TO BE DECIDED

I am required to determine whether an unfair labour practice relating to promotion was committed by 1st Respondent. Further, depending on my finding, l am required to determine the appropriate relief if any is applicable in terms of section 193 and 194 of the LRA.
BACKGROUND OF THE DISPUTE
This is a promotion dispute involving post no 232 – volume 2 of 2025 being the departmental head post for Machibi Primary School.
After the post was advertised, Applicant, the 2nd Respondent and other candidates applied for the post. The 2nd Respondent was appointed as the departmental head [HOD] of Machibi Primary School.
The Applicant alleged that the 1st Respondent was biased towards the 2nd Respondent. The relief sought by Applicant that the appointment of 2nd Respondent be reviewed and set-aside. The post be advertised again.

SURVEY OF EVIDENCE
Employee’s case

The Applicant testified herself and called no other witness in support of her case. In summary, the Applicant testified as follows: She was an educator at Machibi Primary school, post level 1 educator with 16 years working experience. She applied for the post and was shortlisted. She attended the interviews. On the day of the interviews she noticed two of her colleagues [Ms Busakwe & Ms Makapela]. They were not trained for the bulletin. They were part of the panel for the interviews and shortlisting. Ms Busakwe was approached on the day of the interviews. She maintained that her colleagues were not trained for the recruitment process. She mentioned that in co-opting the teachers, the Respondent did not comply with the Employment of the Educators Act [EEA]. The procedure followed by the Machibi primary school was not fair. Educators that were not trained were used as panellists. The SGB of Machibi primary school was not properly constituted. Bundle B page15 was read on record. She maintained that the fair procedure was not followed by the 1st Respondent.
The relief sought was the set aside of the appointment of the 2nd Respondent and compensation.
Respondent’s Case
The first Respondent.
The first Respondent called two witnesses. Their evidence is summarised below. Mr Phumlani Diniso [ “Diniso”] testified as follows: He was employed by 1ST Respondent as a school principal at Machibi Primary School. He also testified about his role on the recruitment process of Machibi Primary School. He was a resource person. The School Governing Body [SGB] had 3 parents and 2 educators. The educators were Ms Makhuzeni and Mr Mxengi. Both could not participate in the recruitment process, Mr Mxengi on the day of shortlisting recused himself because he was related to one of the candidates. Ms Makhuzeni was bereaved. Ms Makhuzeni was replaced by Ms Makhaphela a member of the school management team [SMT]. Mr Mxengi was replaced by Ms Busakhwe. The appointment of Ms Makhaphela and Ms Busakhwe was done in consultation with the circuit manager. He maintained that they were advised by the circuit manager to appoint the other two educators. Ms Makhaphela was trained by him and the chairperson, on the recruitment and selection process. Ms Busakhwe was refreshed because she was familiar with the process. She participated in the recruitment and selection process previously at the school. It was his evidence that chapter 3 of the South African Schools Act allows for co-opting of the members.
Mr Thobela Klaas [“ Klaas”] testified as follows: He was the chairperson of the SGB of Machibi Primary School. He testified about his role on the recruitment and selection process of Machibi Primary School. As the panel, they meet on 08/08/2025 and Mr Mxengi was the scriber. They learnt that Ms Makhuzeni was bereaved and could not participate in the process. They consulted the circuit manager and were advised to choose one of the educators [ SMT] They choose Ms Makhaphela and trained her on recruitment and selection process. Mr Mxengi also disclosed that he was related to one of the candidates and recused himself. A short meeting for the SGB was held and the name of Ms Busakhwe was raised. She was also trained. The SGB discussed the co-opting with their members present and those not present at shortlisting.
The Second Respondent
The second Respondent – Asanda Mkula closed its case without calling any witness.

ANALYSIS OF EVIDENCE AND ARGUMENT

It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2)(a) of the Labour Relations Act (“LRA”) was committed by the Respondent. The Applicant must convince the arbitrator that the conduct of the 1st Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
I have considered the departmental guidelines for sifting, shortlisting, interview procedures.
I have also considered the Recruitment and Selection Policy for the department of Education-Eastern-cape. [“RSP”]
I have considered the South African Schools Act 84 of 1996 [ “SASA”] and ELRC CA 1 of 2024.
I have also considered, the advert in question, open post bulletin volume 2 of 2025. I have also considered the Employment of Educators Act 76 of 1998, Revised PAM document.
Section 186(2)(a) of the LRA reads as follows: “unfair labour practice any unfair act or omission that arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
I have to decide whether the 1st Respondent acted fairly or not, in not promoting Applicant for the position of the head of department for Machibi PS.
It is important to note that there is no right to promotion however there is a right to be given a fair opportunity. In the present case the Applicant was given an opportunity to compete for the post. She was shortlisted; she was invited for the interviews which she attended. The outcome of the interviews was not satisfactory to her. She lodged an unfair labour practice dispute relating to promotion to the Council.
In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason”.
In the current matter before the Council the Applicant was given an opportunity to compete for the post. She was shortlisted for the post of the head department. She attended the interviews and she was not successful.
In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17 , the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.” The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016]
It is common cause that Applicant, 2nd Respondent and other three candidates were shortlisted for the post. They attended the interviews. The 2nd Respondent was the successful candidate.
The Applicant alleges that the 1st Respondent did not follow a fair process in co-opting the two educators. They argued that the process was not fair. The appointment of the 2nd Respondent was not done in a fair manner.
The 1st Respondent argued through its witnesses that the circuit manager was consulted and further the two educators were trained. They were aware of what was expected of them. Mr Klaas and Mr Diniso corroborated each other’s version on this aspect. The 1st Respondent denied the involvement of the two educators at ratification meeting.
The only issue that the Applicant raised was the procedure followed in co-opting the two educators to be part of the panel. She has been silent on how their involvement in the process prejudiced her. At no stage she labelled the two educators disadvantaging her because of their involvement in the recruitment process.
Section 23 of SASA deals with co-opting of members and clause 4,5 of the ELRC CA 1 of 2024 deals with co-opting of teacher representative from the same school.
Clause 4,6 of CA 1 of 2024 provides that “the co-opted member shall not sit nor participate in the SGB meeting convened for ratification.
The Respondent denied the allegations made by the Applicant of the co-opted members involved in the ratification meeting. On the other hand, the Applicant failed to lead evidence through witnesses to confirm their version that two co-opted members participated in the ratification meeting.
In these proceedings onus is on the Applicant to demonstrate that the failure to appoint was unfair and the employer is obliged to defend the challenges on the substantive and procedural fairness.
In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) (handed down on 7 September 2012) it was held, with reference to the Aries case (supra), that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:
a) whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the Employer; or
b) whether the Employer’s decision was arbitrary, or capricious, or unfair; or
c) whether the Employer failed to apply its mind to the promotion of the Employee; or
d) whether the Employer’s decision not to promote was motivated by bad faith;
e) whether the Employer’s decision not to promote was discriminatory;
f) whether there were insubstantial reasons for the Employer’s decision not to promote;
g) whether the Employer’s decision not to promote was based upon a wrong principle;
h) whether the Employer’s decision not to promote was taken in a biased manner.
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.
With the evidence before the Council at no stage the Applicant demonstrated that she was the best candidate. I listened to her testimony, but she was silent on that aspect. At no stage she demonstrated that during the interviews she was the best candidate out of all the 5 candidates that were interviewed. The involvement of the co-opted educators in the recruitment process of Machibi Primary school was mentioned by the Applicant because she was aggrieved that she did not perform well during interviews. I am certain without a doubt that if the Applicant was the best candidate, she would have taken the Council into confidence and demonstrated such.
In Arries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which a Commissioner, 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 to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The Court held further 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 insubstantial reasons, or based upon any wrong principle or in a biased manner”.
There is no evidence before the Council from the Applicant that decision of the 1st Respondent in appointing the 2nd Respondent acted capriciously or relied on a wrong principle.
In POPCRU obo NKOKO v GPSSBC and OTHERS (C219/2018 [2022] ZALCCT 50 (10 AUGUST 2022) the Court summarised the principles governing the resolution of promotional disputes as follows:
(a) It is not sufficient for a candidate for promotion to claim that she was better qualified or more suitable than the successful candidate. The candidate must show that the decision to appoint another candidate was unfair.
(b) If the decision of the employer to appoint one in preference to the other is rational no question of unfairness can arise. The preferment of one candidate over another even if the unsuccessful candidate is better qualified or more suitable than the successful one is not sufficient to establish unfairness.
(c) The reason for promotion or non – promotion are only relevant in so far as they shed light on the fairness of the process of selection. As a corollary, Arbitrators should avoid if possible, making a decision on the merits of an appointment.
(d) Arbitrators should be slow to intervene too readily in disputes relating to promotion and should be sensitive to the operational requirements, as they may be perceived by the employer, unless bad faith or improper motives are present.
(e) The employer’s failure to comply with its promotion policies and procedures can constitute an unfair labour practice if the failure is such that the complainant was denied the opportunity of being considered for the post. [ In the current matter before the Council the Applicant was never denied the opportunity of being considered for the post. As stated above, she was shortlisted for the post, attended the interviews.]
(f) An arbitrator determining an unfair labour practice in relation to promotion is not considering the merits of the impugned promotion de novo, unlike in the case of arbitrators determining the fairness of dismissal.”
Based on the evidence before me, and on what I have highlighted above, I am not satisfied that the Applicant discharged the onus placed on her, on a balance of probabilities to prove that the conduct of the 1st Respondent amounted to unfair labour practice- relating to promotion.
In all the circumstances of this case and after due consideration of all the facts which by law I must consider, I deem the following award fair and equitable.