19 May 2026 – ELRC526-25/26NW

Case Number: ELRC526-25/26NW
Commissioner: PAUL PHUNDU
Date of Award: 18 MAY 2026

In the ARBITRATION between

NAPTOSA obo Dorah Sana Monareng
(Union/Applicant)

And

Department of Education – North West
(1st Respondent)

SADTU obo Mr Kamogelo Mmereki
(2nd Respondent)

Union/Applicant’s representative: Mr Johannes Letlape
Union/Applicant’s address:

Respondent’s representative: Mr Billy Seakgosing
Respondent’s address:

Respondent’s representative: Mr JR Munesi
Respondent’s address:

Telefax:

Details of hearing and representation

[1] This is the award in the arbitration between NAPTOSA obo Dorah Sana Monareng, (hereinafter referred to as the Applicant) and Department of Education – North West, (hereinafter referred to as the 1st Respondent) and SADTU obo Kamogelo Mmereki, (hereinafter referred to as the 2nd Respondent). The matter was set down for arbitration on 9 February 2026 and 11 May 2026 at number 102 Corner Oliver Tambo and Kloppers Street, Palladium House, Rustenburg.
[2] The Applicant was present at the arbitration hearing and she was represented by, Mr Johannes Letlape, Union Official from NAPTOSA. The 1st Respondent was represented by, Mr. Billy Seakgosing, while Mr Kamogelo Mmereki was represented by, Mr J Munesi, Union Official from SADTU.
[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 some of the Respondents content was disputed. To be precise, the successful candidate’s qualification was challenged and branded as a fake certificate by the Applicant.
[5] The proceedings were digitally recorded. I have also kept handwritten notes.

Issue to be decided

[6] 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

[7] The Applicant is employed by the Respondent as an Educator PL 1 .
[8] The Applicant applied for a Head of Department position within the Secondary School which was advertised by the Respondent. She was shortlisted, interviewed and not appointed into the position.
[9] The Applicant was number 3 and she was not recommended for appointment.
[10] The Applicant alleged that the Respondent committed an unfair labour practice by not appointing her into the contested position of Head of Department within the Secondary School.
[11] 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 compensation.

Survey of arguments and evidence

The Applicant’s case

[12] Mr Johannes Letlape testified, under oath, that he is the Representative of the Applicant and the Applicant will not testify.
[13] Mr Letlape stated that the 2nd Respondent’s qualification, Honours Degree in Education was fake and not authentic. As a result, Mr Kamogelo Mmereki should not have been appointed into the contested position.
[14] Mr Letlape concluded by stating that the Applicant was an ideal candidate for promotion.
.
[15] Under cross-examination Mr Letlape insisted that the qualification was fake. Two different signature of different Registrars appear on the qualification which is abnormal. He said Mr Mmereki’s qualification was forged.

The Respondent’s case

[16] Mr. Billy Seakgosing testified, under oath, that he is employed by the Respondent as Employee Relations Official.
[17] Mr. Seakgosing stated that the Respondent was correct in appointing Mr. Kamogelo Mmereki into the contested position. He said the Mr Mmereki not only performed better than the candidates, his Honours Degree Certificate was authentic and valid.
[18] He disputed the allegation that the qualification was fake and confirmed that the Applicant has a duty to prove her allegation.
[19] Mr J. Munesi simply supported Mr Seakgosing’s testimony.

[20] Under cross-examination Mr Seakgosing re-iterated that the Honours Degree qualification was not fake and it was not forged. The Applicant was duty bound to confirm and back up her allegations.

Analysis of evidence and arguments

[21] 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.
[22] 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”.
[23] The dispute is about an allegation of an unfair labour practice-promotion. In essence, the Applicant is alleging that the 2nd Respondent’s qualifications are fake and forged.
[24] 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 concerning promotion.
[25] The dispute was referred as an allegation of an unfair labour practice concerning promotion.
[26] 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.
[27] It is common cause that the Applicant applied for the position of Head of Department, she was shortlisted, interviewed but not appointed.
[28] I disagree with Mr Letlape and reject his testimony merely because the allegation was not substantiated and corroborated by any evidence. It is further my view that it was the Applicant’s obligation to call an expert witness to come and verify and confirm the authenticity of the 2nd Respondent’s qualification.
[29] It is equally important to state that on the 9th of February 2026, I had given the Applicant an opportunity to contact the University of the North West to verify the authenticity of the qualification and further subpoena any witness to prove her allegation.
[30] It is further my finding that it was not a duty of the presiding Commissioner to assist any party to the proceedings to collate evidence in whatever form or shape.
[31] Section 182 (2) of The Labour Relations Act, 66 of 1995 places an obligation to prove unfairness in relation to promotion squarely on the shoulders of the Applicant.
[32] It is further my finding that no adequate reason was furnished and/or no acceptable grounds exist for not calling the expert witness to come and verify the allegation of a fake qualification.
[33] This left me with no option but to draw an adverse inference on the Applicant case in that she failed to call a material witness to come and support her allegation of fraudulent qualification.
[34] It must be noted that the Applicant was number 3 in the contested position.
[35] The reason given by the Respondent in substantiating its decision not to appoint the Applicant was reasonable, justified and fair.

[36] In FAWU obo Gaoshubelwe v Pieman’s Pantry (Pty) Ltd [2018] 6 BLLR 531 (CC); (2018) 39 ILJ 1213 (CC) (20 March 2018) “the Constitutional Court confirmed that he who alleges must prove. If he central issue can only be resolved by technical or scientific knowledge (e.g. the scientific reliability of a breathalyser or a medical doctor’s report), failing to call the expert to substantiate the report reduces the evidence to inadmissible hearsay”.
[37] 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

[38] 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”.

[39] In light of the above quoted authorities, there is no evidence before me that proves that Mr Kamogelo Mmereki’s qualification was fake or forged.
[40] It is my finding that the successful candidate, Mr Mmereki, is a qualified and correctly appointed candidate.

[41] It is my finding that the Respondent has not committed an unfair labour practice in as far as the appointment of Mr. Mmereki was concerned.

[42] The Applicant has failed to prove, on a balance of probabilities, that the Respondent has committed an unfair labour practice concerning promotion.
[43] I therefore make the following award:

Award

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

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

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