19 March 2026 -ELRC925-25/26GP

Case Number: ELRC925-25/26GP
Commissioner: PAUL PHUNDU
Date of Award: 19 MARCH 2026

In the ARBITRATION between

SADTU obo Mandisa Bashmen
(Union/Applicant)

And

Department of Education – Gauteng
(Respondent)

Union/Applicant’s representative: Mr William Mamogage
Union/Applicant’s address:

Telephone:
Telefax:
E-mail:

Respondent’s representative: Ms Thuli Mvubelo
Respondent’s address:

Telephone:
Telefax:

      Details of hearing and representation

[1] This is the award in the arbitration between SADTU obo William Mamogage, (hereinafter referred to as the Applicant) and Department of Education – Gauteng, (hereinafter referred to as the Respondent). The matter was set down for arbitration on 27 February 2026 virtually on MS Team Platforms.
[2] The Applicant was present at the arbitration hearing and she was represented by, Mr William Mamogage, Union Official from SADTU. The Respondent was represented by, Ms Thuli Mvubelo, Employee Relations Official.
[3] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[4] Both parties submitted bundles of documents marked as annexure “A’ and annexure “B” and the content was not disputed.
[5] The proceedings were digitally recorded. I have also kept handwritten notes.
[6] Only the respondent filed written closing arguments and I have considered the closing argument.

       Issue to be decided

[7] I am required to establish whether the Respondent committed an unfair labour practice in relation to promotion or not, if so, I must determine the appropriate remedy.

       Background to the issue

[8] The Applicant is employed by the Respondent as an Educator PL 1 at Masisebenze High School.
[9] The Applicant applied for a Head of Department position which was advertised in February 2025 by the Respondent. She was shortlisted, interviewed and not appointed into the position.
[10] The Applicant alleged that the Respondent committed an unfair labour practice by not appointing her into the contested position of Head of Department.
[11] According to the Applicant, she was scored the highest and she was number 1 on the list of the three recommended candidates for appointment.
[12] She declared a dispute. Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for promotion.

       Survey of argument and evidence

The applicant’s case

[13] Ms Mandisa Bashmen testified, under oath, that she was one of the three candidates who were shortlisted and interviewed for the position of a Head of Department (PL2) at Masisebenze High School. According to her, the School Governing Body recommended that she be appointed into the position as she was candidate number 1.
[14] Ms Bashmen stated that the reason she was not appointed was because the Respondent picked up that she has a criminal record.
[15] Ms Bashmen stated that she was convicted and given a 3 years suspended sentence for theft.
[16] According to Bashmen, the Respondent acted unfairly by not appointing her because the incident happened in 1996 while she was based in Cape Town.
[17] Ms Bashmen stated that when she applied for the position she was under the impression that the criminal record was expunged.
[18] Under cross-examination Ms Bashmen confirmed that she applied for the expungement of her criminal after the recruitment, selection and appointment of the successful candidate was made by the Respondent.
[19] Ms Bashmen confirmed that at the time she applied for promotion, her criminal record was intact and valid. However, she was not aware that she had a criminal record.
[20] Ms Bashmen conceded that her criminal record was picked up during a verification exercise by the Respondent. She received her clearance certificate on 23 September 2025.

[21] Ms Khanyiswa Felicia Hlanjwa testified, under oath, that she was the chairperson of the School Governing Body at Masisebenze High School.
[22] Ms Hlanjwa stated that she was not a panel member of the interviews for this contested position. Furthermore, she was not present during the interviews.
[23] Ms Hlanjwa stated that the Principal informed her that the Applicant was not appointed into the position of Head of Department because of her criminal record.
[24] Under cross-examination Ms Hlanjwa indicated that she knew nothing about the recruitment, selection and appointment procedures of the Respondent.

[25] Mr Alfred Mange Phiri testified, under oath, that he is the secretary of the School Governing Body. He said SADTU informed him about the criminal record of the Applicant. However, as the Governing Body, they never discussed the criminal record of the Applicant.
[26] Under cross-examination Mr. Phiri confirmed that he was not familiar with the recruitment, selection and appointment procedures of the Respondent. He said he was made aware that the second candidate was appointed because he had no criminal record.
[27] Mr Phiri further confirmed that he was not part of the interview process.

[28] Mr. Selokela Malema testified, under oath, that he is the Regional Chairperson of SADTU. He said the Respondent acted unfairly by not appointing the Applicant.
[29] Mr Malema stated that the Applicant was the best candidate for the position.
[30] Mr Malema further stated that the Applicant’s criminal record was expunged and she was given a clearance certificate in September 2025.
[31] Under cross-examination Mr Malema confirmed that he was familiar with the recruitment and selection processes of the Respondent. He agreed that the Respondent has the authority to appoint and not the Governing Body. He further conceded that the Applicant failed to disclose her criminal record.
[32] Mr Malema stated that the Respondent should have appointed the Applicant as she was the best candidate amongst the 3 recommended candidates.
The Respondent’s case

[33] Mr. Percival Nkosi testified, under oath, that he is employed by the Respondent as Chief Personnel Officer. He said it was the responsibility of the Respondent to train members of the School Governing Body on how to recruit, select and recommend candidates to the Respondent for appointment.
[34] Mr Nkosi stated that the members of the School Governing Body are also trained on how to institute a panel for interviews and School Governing Body’s role was explicitly clarified.
[35] Mr Nkosi indicated that it is only the District Director that has the authority to appoint recommended candidates and the Director can choose anyone from the three recommended candidates.
[36] Mr Nkosi further stated that the Applicant failed to disclose in her application for promotion that she has a criminal record. When asked, she said she does not have a criminal record.
[37] Under cross-examination Mr Nkosi stated that the Applicant was informed through her Trade Union (SADTU) the reason for non-appointment. It was made clear to her that she has a criminal record, as a result, she was not a suitable candidate for promotion.

Analysis of evidence and arguments

[38] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
[39] Section 186(2) provides that; (i ) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving – (ii) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
[40] The dispute is about an allegation of an unfair labour practice-promotion. The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to an unfair labour practise regarding promotion.
[41] The dispute was referred as an allegation of an unfair labour practice concerning promotion.
[42] I am therefore required to determine whether the Respondent’s conduct was fair or unfair in not promoting the applicant, to succeed in such a claim, the Applicant must show that the Respondent’s conduct was arbitrary, capricious and therefore unfair.
[43] It is common cause that the Applicant applied for the position of Head of Department at Masisebenze High School. The Applicant was shortlisted, interviewed but not appointed.
[44] I reject the Applicant’s testimony that the Respondent acted unfairly by not appointing her. The reason I say so was because the Applicant did not disclose in her application for employment that she has a criminal record. The Applicant stated in her application that she does not have a criminal record. In my view, the Applicant concealed her criminal record by not disclosing that she has a criminal record.
[45] It is further my finding that the Governing Body can recommend a particular candidate for appointment, however, the authority to appoint any candidate amongst the three recommended candidates rest with the Respondent.
[46] I am not persuaded and also not convinced by the Applicant’s assertion that she was not aware of her criminal record.
[47] I am satisfied by the Respondent’s stance of not promoting candidates with criminal record. I believe this is a valid and justifiable decision.
[48] It is my finding that the decision taken by the Respondent not to appoint the Applicant was fair, reasonable and justifiable.
[49] It is further my finding that the Applicant’s own witnesses did nothing to disprove the Respondent’s case.
[50] I agree and accept Mr Nkosi’s testimony that the Respondent has the right to appoint any candidate from the list of the recommended candidates.
[51] I agree with the Respondent that the Applicant was not a suitable candidate for promotion because of her criminal record at the time.

[52] In George v Liberty Life Association of Africa Ltd [1996] 17 ILJ 871 (LC), it was determined that the courts should not intervene in cases relating to promotions unless an element of bad faith or procedural unfairness exists. The enquiry is not whether or not the employer appointed the right candidate as perceived by the employee or the courts. The enquiry is rather whether the employer acted procedurally and substantively fairly when reaching his decision. Substantive fairness may include, inter alia, instances of bad faith or discrimination

[53] In Aries v CCMA & others the Court held that “there are limited grounds on 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 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”.

[54] The Applicant has failed to prove, on a balance of probabilities, that the Respondent has committed an unfair labour practice concerning promotion.

[55] I therefore make the following award:

Award

[56] The Respondent has not committed any unfair labour practice regarding promotion.

[57] The Applicant is not entitled to any relief.

[58] The Applicant’s referral of a dispute is dismissed.