19 May 2026 – ELRC151-25/26NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC151-25/26NW

In the matter between

Maureen Mmalefatshe Serole Applicant

and

Department of Education: North West. First Respondent

Diopatsie Meriam Modisane Second Respondent

ARBITRATOR: Goitseone Lesele

HEARD: 29 and 30 April 2026

DATE OF AWARD 21 May 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

The dispute was scheduled for Arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (As Amended 25 July 2023). The arbitration was held on several occasions but was only finalised on 30 April 2026. All sessions were held at Rustenburg Local Area Office: Department of Education in North West Province.
Mr. Tsholofelo Monkwe SADTU official represented the Applicant whereas Mr. Matshaba Tatedi, Labour Relations officer appeared for the 1st and 2nd Respondent.
Both parties entered bundles of documents into these proceedings, I respectively marked Bundle R for the Applicant, and R for the Respondent.
The proceedings were digitally recorded, and hand written notes taken.
The Closing Arguments for both parties were received timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the Respondent committed an Unfair Labour Practice by not short listing the Applicant on 13 February 2025.
In the event I find in the Applicant’s favour, I would have to grant the Applicant’s prayers, in the form of setting the 2nd Respondents’ appointment aside and compensating the Applicant.

BACKGROUND TO THE DISPUTE

Maurine Serole and Meriam Modisane are educators who applied for a Principal post at JM Ntsime High School. Ms Modisane is the appointed school principal, whereas Ms Serole is a candidate that applied for the Principal position at JM Ntsime High School.
JM Ntsime High School is a public school under Bojanala District in Department of Education in North West Province.
The 1st Respondent, the Department of Education and SADTU are members of ELRC, which signed Collective Agreement 1 of 2021 that regulate appointment of educators. JM Ntsime advertised a Principal position in which both the Applicant in this dispute and the incumbent acted and applied for the vacancy.
It is however common cause between the parties:

That the Applicant was employed by the First Respondent as a PL 1 Educator at the time of her application.
The 2nd Respondent was employed as a PL3 deputy Principal at the time of her application.
That the Applicant and 2nd Respondent applied for a post of Principal (PL 4- P4) at JM Ntsime High School.
Both the Applicant and the incumbent were shortlisted for the post.

The Applicant lodged unfair labour practice dispute – Promotion and prayed for the appointment to be set aside and compensation. The Applicant’s dispute is based on the provisions of ELRC Resolution 1 of 2021 in that the 1st Respondent acted unfairly by not shortlisting the Applicant on 13 February 2025.
Both parties entered bundles of documents into the proceedings which I respectively marked Bundle A for the Applicant and Bundle R for the Respondent.
The Applicant was interviewed for the Principal post and the process was nullified. The Applicant was then not shortlisted in the second process.
It is however the Applicant’s case that the 1st Respondent treated her unfairly by not short listing her for the second process.

SURVEY OF EVIDENCE AND ARGUMENT

The Applicant’s Submissions

What follows is a summary of the Applicant’s version as testified its witnesses under oaths, Ms. Maurine Serole and the other two witnesses under oath, Mr. Samuel Sello and Ms. Francina Makgala:

The Applicant testified that she applied for a post of Principal at JM Ntsime High School, she was short listed in the first process which was later nullified without any reasons given by the 1st Respondent. Further that she was not short listed in the second process which led to her filing a grievance with the Circuit Co- coordinator, when she did not receive a response from the circuit coordinator she then filed an unfair labour practice dispute with the ELRC.
She further testified that she met the minimum requirements of the post that she had applied for, however at the time of her application she was a PL1 educator due to her demotion that took effect in September 2023. Serole testified that she has extensive experience as a Principal as compared to the 2nd Respondent, and the 1st Respondent acted unfairly in not considering her 29 years experience with the 1st Respondent which was unfair to her.
Under cross examination she testified that she worked for the Department of Education North West for 31 years, and was a Principal from 2010 until 2023 when she was demoted. Serole submitted that she met the minimum requirements to the said position applied for, and that the panel was wrong not to short list her. It was put to her by the 1st Respondent that there was no way that she could have been considered because she was a PL1 educator at the time of her application.
Serole further testified that should it be found that she applied for the position before her 12 months of demotion lapsed, the 1st Respondent will not have been unfair to her not to shortlist her. She testified that she was sanctioned in August 2023, demoted in September 2023 and the demotion was financially implemented in December 2023. It was put to the Applicant that she was still under demotion when she applied for the position of Principal at JM Ntsime High School on 03 October 2024. It was further put to her that even if the panel did not mention her demotion, the reasons given by the panel do not supersede the law (EEA Schedule 2).
During re examination she testified that the 2nd Respondent did not qualify to be short listed for the position applied for, further that she was not demoted on 01 December 2023 but in September 2023. She submitted that the Respondent acted unfairly as they failed to consider her experience even though she was a PL1 educator at the time of her application.
Samuel Sello testified that he knows both the Applicant and the 2nd Respondent, and that he participated in the first process of the interviews where the Applicant was recommended to be on the first position. He however was not aware of why the first process was nullified as no reasons were given, further that he would not be a witness if he knew that the Applicant did not qualify to be short listed. He further submitted that experience does not rot, and that Ms. Rasesemola who was the chairperson of the second short listing panellists wanted to recommend the Applicant but she was ignored and she destroyed documents of the first process.
Under cross examination he testified that all records of the first process were destroyed except for curriculum vitae’s and application forms, and that he witnessed Rasesemola destroy them. He testified that he was not aware of the Applicant’s demotion, and that if the Applicant had applied whilst under demotion then she would have not qualified to be shortlisted. Further that the 1st Respondent met almost the required requirements to be shortlisted as opposed to the Applicant.
Under re examination he testified that the applicant met the requirements and she was supposed to be considered during the second short listing process.
Francina Makgala testified under oath that she worked with the Applicant from 2018 until 2023 when she was demoted. She testified that the Applicant became aware of her demotion on 13 October 2023, she shared the news with other employees including herself on the same day. She denied that the Applicant was demoted in December 2023 as the Applicant had already left the school then. Further that the circuit manager addressed the staff about the demotion of the Applicant in October 2023.
Under cross examination she submitted that the Applicant share news about her demotion on 13 October 2023, and the circuit manager shared the news with staff during the same month of October 2023. Makgala reiterated that the demotion could have not been in September 2023, and the Applicant continued to serve as a Principal even after October.
Under re examination she testified that no documentation was shared regarding the demotion, however it was just a dialogue between them. She disputed that the demotion happened in September 2023.
Briefly put the Applicant and her witnesses submitted that the First Respondent had committed an unfair labour practice by, amongst a number of other issues, not sifting-in the Applicant during the short listing process.

The Respondents’ Submissions

What follows is a summary of the 1st and 2nd Respondents’ version testified their witnesses under oath, Ms. Agnes Rasesemola:

Rasesemola testified under oath that she was the chairperson of the short listing panel of the Principal post that was advertised. Further that the panel formulated additional criteria as the powers to do so were vested upon them by the Department of Education North West, and that short listing was done fairly and objectively. She submitted that the Applicant was not considered as she was not a deputy or acting Principal at the time of her application.
According to Rasesemola the focus was on Deputy principals, and the Applicant’s application was never looked at as she was a PL1 educator. She further submitted that all PL1 educators applications were never entertained as they had enough PL3 educators applications, she also submitted that experience is considered even after there was a break in service but in this matter that was not considered because the Applicant was a PL1 educator. She further testified that they relied on the first page of the application forms when they were short listing, and that the Applicant indicated clearly that she was a PL1 educator regardless of the additional information that she wrote in brackets that was not necessary. She testified that she was never in possession of the records of the first process, and the documents that she destroyed where documents that they used to take notes during the process which had confidential information.
Under cross examination she testified that there is no standard form of writing a curriculum vitae, and PL1 and PL2 educators where never considered. She further testified that the Applicant had no reason why she wrote her previous experience on the first page of her application form, she was only required to write her present post description and level which was a PL1 educator. Rasesemola submitted that the panel does not appoint weak candidates, however the Applicant was a PL1 educator. She submitted that the panel was well guided, the process was fair and everyone who sat in that meeting participated.
She submitted that the panel did not contravene the collective agreement, and that she destroyed A4 pages not records of the first process.
According to Mr Shikwe, the SGB Chairperson there was compliance with Resolution 1 of 2021. Mrs Maswabela recused herself as a person with interest and an applicant to the post. According to Boroko staff members were invited to the wedding at her place, no one was excluded whoever chose not to attend it was their decision.
The 1st Respondent argued that the Applicant’s dispute should be dismissed.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving – 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.”
In the matter before me, the Applicant’s version substantiated with evidence of her two witnesses is that the Applicant was unfairly treated by the 1st Respondent in not short listing her for the second process.
However, I find that the Respondent dismissed the Applicant’s claims that her years of experience were never considered and that she met the requirements to be shortlisted for the said principal post, the Applicant was shortlisted in the first process which was later nullified with no reasons given, and was allegedly the best candidate in the interviews; the Applicant did not meet the minimum requirements to have been shortlisted in the first process and she relies on her years of expirience, she was a PL1 educator at the time of her application.
Further to that her witness Makgala partially corroborated both the Applicant’s and the Respondent’s evidence on the date that the demotion was sanctioned to the Applicant and implementation date of the said demotion. The Applicant submitted that she was sanctioned in September 2023 and financially the demotion was implemented in December, her witness testified that she was sanctioned in October 2023, the Respondent submitted that according to their records the she was demoted on 01 December 2023. I am of the view that the Applicant did not even qualify to have applied for this position as her 12 months period of demotion had not lapsed in terms of the EEA Schedule 2.8.3.
The Respondent dismissed the allegation.
I further find that it was incorrect as claimed and testified by the Applicant’s witness Mr Sello that, the Chairperson of the second panel destroyed documents of the first process and that the Applicant was rated to be the best canditate in the first process. Yes her years of experience are noted, however how was she shortlisted in the first process when she was a PL1 educator at the time of her application? Sello feels that the Applicant was treated unfairly but not being short listed, one then wonders what the true meaning of unfair is when the Applicant was a PL1 educator when she applied for the position in question.
I therefore find that the Applicant’s witness was untruthful.
In totality of the circumstances, I find that Applicant failed to discharge her onus in the balance of probabilities that the Respondent committed unfair labour practice envisaged by section 186(2) of the Labour Relations Act, 66 of 1995, as amended. I therefore find it appropriate to award as follow:

AWARD

The Applicant, Maureen Mmalefatshe Serole, has failed to prove that the First Respondent, Department of Education – North West, committed an Unfair Labour Practice relating to promotion in terms of Section 186 (2) (a) of the LRA.
The application is dismissed.