--- title: "19 October 2026 – ELRC906-25/26LP" description: "ARBITRATION AWARD ELRC906-25/26LP DATE:19 OCTOBER 2026 IN THE MATTER BETWEEN: TSHEPO DUNCAN MNISI APPLICANT And EDUCATION DEPARTMENT OF LIMPOPO 1st RESPONDENT AMANDA MAHLANGU 2nd RESPONDENT 1. DETAILS OF THE HEARING AND REPRESENTATION 1.1. The arbitration hearing into an alleged unfair…" url: "https://elrc.org.za/docs/19-october-2026-elrc906-25-26lp/" updated: "2026-10-22" category: AWARDS --- # 19 October 2026 – ELRC906-25/26LP ARBITRATION AWARD ELRC906-25/26LP DATE:19 OCTOBER 2026 IN THE MATTER BETWEEN: TSHEPO DUNCAN MNISI APPLICANT And EDUCATION DEPARTMENT OF LIMPOPO 1st RESPONDENT AMANDA MAHLANGU 2nd RESPONDENT 1. DETAILS OF THE HEARING AND REPRESENTATION 1.1. The arbitration hearing into an alleged unfair labour practice, referred to in terms of section 186(2) of the Labour Relations Act 66 of 1995 (the LRA) as amended, was finalized at Sekhukhune South District, on 06 October 2026. 1.2. Both parties attended the proceedings. The 1st respondent was represented by Nthabisheng Rasebotsa, the 2nd respondent were represented by Talane S M, union official from SADTU, while the applicant was represented by Skhosana E L, union official from PEU. 1.3. The hearing was held in English and was digitally recorded. 1. ISSUES TO BE DECIDED 2.1. Whether or not the decision of the 1st respondent to appoint the 2nd respondent to the position of Departmental Head at Segolola Secondary School was substantively fair. 2.2. If the appointment of the 2nd respondent was substantively unfair, I must determine appropriate relief in terms of section 193 of the LRA. 1. BACKGROUND TO THE ISSUES 3.1. The applicant viewed his non-appointment to the position of Departmental Head as having been substantively unfair and prayed to be appointed to the position as advertised. 3.2. The following issues are common cause to both parties: a) The applicant and the 2nd respondent were shortlisted and interviewed. b) After the candidate that was recommended by the SGB as the first preferred candidate was not appointed, the HR function recommended the applicant to be appointed. c) One of the minimum requirements for the advertised position was to specialize in Sepedi and English. d) The applicant’s field of specialization is English and Geography. e) The 2nd respondent’s field of specialization is English and IsiNdebele. d) the 2nd respondent was appointed to the disputed position from 01 January 2026. 3.3. Prior to the commencement of the proceedings, only the 1st respondent submitted a bundle of documents marked “R”. 3.4. The applicant closed his case after leading his own evidence, the 1st respondent closed its case after leading one witness, while the 2nd respondent closed her case after leading her own evidence. 3.5. Both parties submitted written closing arguments. 1. SUMMARY OF EVIDENCE AND ARGUMENTS 4.1. The following is a summary of only relevant evidence submitted by both parties and which was considered to arrive at a decision in the matter. 1. THE APPLICANT’S CASE 5.1. The applicant, Tshepo Duncan Mnisi, testified that he qualified to be appointed to the position of Head of Department. He was shortlisted and went for the interviews. After the interviews, he was ranked position two (02). After Mr Lesiba Leshilo was not appointed, he was then recommended for appointment. His recommendation for appointment was not approved. The 1st respondent alleged that the applicant was not appointed because he does not meet the curriculum needs for the position. 5.2. Under cross-examination, the applicant testified the curriculum needs for the advertised position is Sepedi and English. He does not possess Sepedi as a curriculum needs but he has passed Sepedi in matric. His specialized subjects are English and Geography. During the shortlisting, he was invited as an observer but recused himself immediately after his name was mentioned as a candidate. When he accepted the invitation to observe, he was not aware that the shortlisting was for the position of Head of Department. The 2nd respondent also does not meet the curriculum needs for the position. The 2nd respondent possesses English and IsiNdebele. In terms of Collective Agreement, all recommended candidates are eligible for appointments, and appointments are not made in terms of the ranking. After Mr Lesiba Leshilo was not appointed, he was then recommended for appointment. 1. THE 1st RESPONDENT’S CASE 6.1. The 1st respondent’s witness was Precious Mageza. She testified that the SGB’s preferred candidate was not appointed because he did not have three (03) years’ experience as one of the minimum requirements of the advertised position. After the SGB’s first preferred candidate was disqualified for appointment, the 2nd respondent was then recommended by the SGB. Neither the 2nd respondent nor the applicant meet the curriculum needs of the advertised position. The 2nd respondent has IsiNdebele and English as her curriculum needs, while the applicant has English and Geography. The 2nd respondent was appointed because one of her curriculum needs, IsiNdebele, is an African language. The HR functionary who recommended the applicant for appointment did not have the powers/authority to recommend candidates for appointment in terms of the Collective Agreement. 6.2. Under cross-examination, the witness testified that the 2nd respondent and the applicant did not meet the curriculum needs of the advertised position. Both the 2nd respondent and the applicant were not supposed to have been shortlisted. The 2nd respondent has more than three (03) years’ experience. Immediately after the appointment, she was informed that she did not meet the curriculum needs of the advertised position, and she was not supposed to have been appointed. The appointment of the 2nd respondent was irregular. 1. THE 2ND RESPONDENT’S CASE 7.1. The 2nd respondent, Amanda Mahlangu, testified that she was formally appointed. She met all the requirements for the advertised position. She specialized in English and IsiNdebele. The curriculum needs for the advertised position were Sepedi and English. Because one of her specialized subjects is an African language, it compensates for her lack of Sepedi. 7.2. Under cross-examination, the 2nd respondent testified that IsiNdebele is not Sepedi. 1. ANALYSIS OF EVIDENCE AND ARGUMENTS 8.1. In this matter, the onus was on the applicant to prove on balance of probabilities that the decision not to appoint him to the position of HOD was substantively unfair. 8.2. The Collective Agreement No 3 of 2016 ELRC Guidelines: Promotion Arbitrations, provides that where the employee complains that another employee was promoted, he or she must show that: a) he or she has the necessary skills; and b) the person who was promoted does not possess the same level of skills. 8.3. In Arries v CCMA and others (2006) 27 ILJ 2324 (LC), the Court held 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 unsubstantial reasons, or based upon any wrong principle or in a biased manner. 8.4. In this matter, it is common cause that the applicant and the 2nd respondent do not meet the curriculum needs of the Head of Department position. It is also common cause that the curriculum needs, Sepedi and English, are specialized field. For the applicant to submit that he meets the curriculum need because he has passed Sepedi in matric was classic example of clutching at straws. The applicant based his case on undisputed evidence that after the non-appointment of the preferred candidate, he was recommended for appointment. It is the employer’s undisputed evidence that the HR functionary who recommended that the employee be appointed, he/she did not have powers or authority to recommend candidates for appointment in terms of the Collective Agreement. I therefore conclude that the applicant does not have the necessary curriculum needs for the advertised position, and he was not supposed to have been shortlisted in the first place. 8.5. Despite that the 1st respondent conceded that the appointment of the 2nd respondent was irregular, setting her appointment aside without the applicant proving that the 1st respondent failure to appoint him was unfair, would be irregular. 8.6. The relief sought by the applicant can only be awarded, only if he has proved that the decision of the respondent not to appoint him was exercised capriciously, or for unsubstantial reasons or based upon any wrong principle or in a biased manner. 8.7. In the circumstances, I conclude that the applicant has failed to prove on balance of probabilities that the decision not to appoint him to the position of Head of Department was substantively unfair. 9. AWARD 9.1. The applicant’s claim is dismissed. ELRC PANELIST NICHOLUS SONO