ARBITRATION AWARD
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD (GAUTENG PROVINCE)
Case No: ELRC97-26/27GP

In the matter between

Ms. NEO MAKOBE Applicant

and

DEPARTMENT OF EDUCATION: GAUTENG PROVINCE Respondent

ARBITRATOR: Monde Boyce

HEARD: 29 June 2026 and 29 July 2026

CLOSING ARGUMENTS: 29 July 2026

DATE OF AWARD: 17 August 2026

AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This matter was set down for arbitration on 29 June 2026. The matter was however not finalised on that date, and the Council rescheduled arbitration for 29 July 2026. Both parties attended the arbitration with the applicant appearing in person while Ms. Trent, the Chief Education Specialist responsible for labour relations, represented the respondent. The matter proceeded virtually on both dates and was finalised on 29 July 2026 with both parties submitting closing arguments on the same date.

[2] At the commencement of the proceedings on 29 July 2026, the respondent raised a preliminary issue to the effect that the applicant was not dismissed as she was never employed by the department. The applicant, on the other hand, was adamant that she was employed by the department and that she was unfairly dismissed. I thus invited parties to lead evidence in order to determine the issue. The applicant had the duty to begin to prove existence of the dismissal. Only the bundle submitted by the respondent was relied upon during the proceedings. The applicant did not submit a bundle. The Council did not arrange an interpreter because none of the parties sought one. The proceedings were digitally recorded and typed notes were taken.

THE ISSUE TO BE DECIDED:
[3] I am required to decide whether the applicant was dismissed and, where I find that she was dismissed, decided whether her dismissal was fair and to make the appropriate award.

THE BACKGROUND TO THE DISPUTE:

[4] The applicant referred a dispute to the Council in terms of section 191(1)(a)(i) (“the LRA”) alleging unfair dismissal based on unknown reason. The referral followed her being aggrieved with the employer’s decision not to appoint her to teach bricklaying at Bosele Special School in Krugersdorp after, according to her, she had signed a contract of employment at the school. When the dispute could not be resolved at conciliation, the applicant referred the dispute for arbitration. The applicant seeks compensation as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicant’s evidence

[5] Ms. Neo Makobe testified that in January 2026, she completed her profile on the Gauteng’s Unemployed Educators site after completing her Advanced Diploma in Technical and Vocational Training in December 2025. She thereafter applied to several high schools in the Gauteng province. She saw an advert for Bosele Special School and applied between February and March 2026. The advert was for bricklaying subject, and she applied. She received an sms inviting her to attend an interview. She went to the interview on 05 March 2026.

[6] She was interviewed by the principal, Mr Thage and the School Governing Body (SGB) members. Before the interview, she was asked about her qualifications. She submitted her curriculum vitae (CV) together with her certificates. She informed the panel that she could not complete her Post Graduate Certificate in Education (PGCE). In 2017 she registered with SACE for a post she was appointed at as an educator in Limpopo. She started applying for posts in secondary schools and TVET colleges. After the interview, she asked when she could receive feedback, and she was told by the principal that she would receive feedback that same day. She was sitting in her car a short while after the interviews when she received a call from one of the SGB members congratulating her on being successful in the interview and advising her to visit the school.

[7] She went to the school and was given a contract to sign. She enquired on when she could commence work, and the principal told her she could start work the following day, which was the 6th of March 2026. She mentioned to the principal that that was short notice and requested to report for work on the Monday of the 9th of March 2026. She had to hire a truck and a helper to transport her furniture to Krugersdorp, paid deposit for her accommodation and reported for work on 09 March 2026. She worked on the 10th of March 2026, and on which date she and other educators were asked to go to the district for fingerprints to be taken. On 11 March 2026 she was called by the principal who relayed a message to the effect that he received a call from the district saying that she could not be employed because she did not have PGCE. She reminded the principal that she handed her qualifications to him and that her application stated her qualifications, but the principal told her he did not have an answer for her and advised her to go to the District Office.

[8] She went to the district office and met a Tebogo at the Human Resources department who informed her that she could not be appointed because she did not qualify because of her qualification. When she tried to engage Tebogo, Tebogo told her to go to the principal because he (principal) was the one who told her to start work. On 12 March 2026, she went to school and told the principal what Tebogo had told her. The principal asked her why she did not tell him that she still was to receive an appointment letter as he could have asked someone who already had an appointment letter to start working at the school. She reminded the principal that it was on his advice that she reported for work at the school. The principal told her that she could not be employed if she did not have the PGCE and suggested that her SACE certificate could be fraudulent as the Limpopo Education Department could not have employed her without the PGCE. The conversation with the principal was very unpleasant, and she decided to lodge an unfair dismissal dispute because she felt that the principal could have given something to her in writing to the effect that she could not be employed because of her qualification.

[9] On 20 March 2026, she sent an email to the principal requesting something in writing that would confirm the process she and the school had gone through from the 5th of March 2026, but the principal did not respond. She sent an email to the district office, and she received a response from a Mr Oupa Kwapeng who stated that he would send the email to the relevant section. On 26 March 2026, she went to the district office where she asked to see Tebogo. She asked Tebogo if she received the email that she had earlier sent, and Tebogo confirmed receipt. Tebogo however could not tell her when to expect a response from the department. She was later advised to refer a dispute to the CCMA. She referred a dispute to the CCMA, but the CCMA transferred the dispute to the ELRC. She heard from someone in the department that she could be employed.
The Respondent’s Evidence

[10] Ms. Emely Mochela was called as the respondent’s first witness, and she testified that she is employed as the Assistant Director: Human Resources Management and primarily deals with recruitment. The process employed for PL1 posts is that once there is a vacancy at a school the principal together with the school management team (SMT) will write to her office and notify the office. The correspondence will state the requirements for that particular post. On receipt of the GDE79 document, they post the advert on the unemployed educators data base where the post will be available for interested members of the public to apply. There would be a publication date and a closing date. On closing of the advert, the list of candidates would be drawn up from the data base and shared with the SMT. Documents on applicants recommended would be sent to the district office where quality assurance would be done after which appointment letters would be issued for the candidates once approved. Once recommendations received from the school are approved by the district, the HOD would issue a letter of appointment to the educator to assume duties. The person delegated to approve appointments by the HOD is the district director.

[11] The minimum requirements for the PGCE qualification is 180 credits. The credits on the applicant’s academic record submitted was 108 credits, and she (applicant) thus did not meet the requirements for granting of the qualification. The qualification the applicant obtained at STADIO is a qualification to teach at a TVET college and not at basic education schools. The applicant can use the qualification at a TVET college. It is incorrect that the applicant met the qualification to teach at the school. In terms of Personnel Administrative Measures (PAM), the applicant is not allowed to teach at the basic education department schools. Section B of PAM guides the department on employment of educators. B.3.2.1.1 says the minimum requirements for appointment school based RQV13 is a recognised three-year qualification which includes teacher education.

[12] What was indicated on the advertisement was an educator for Mathematics and Bricklaying and, in terms of the GDE79 requirements, Collective Agreement 3 of 2018 was not followed because what was written on the contract is different from what was stated in the advert. The requirement is that what is reflected on the GDE79 must reflect what is stated in the advert. The section in the application for appointment shows that the HRP unit’s signature and that of the district director do not appear, meaning that the applicant was not appointed. The delegated authority is the district director and not the principal. The applicant could thus not claim to have been appointed by the department.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
[13] The trite requirement on onus is that a party who bears the onus must discharge the onus. In terms of section 192(1) of the LRA, existence of a dismissal must be established. It is only once existence of the dismissal is established that the onus shifts to an employer to prove that dismissal was effected for valid reasons following a fair procedure.

[14] In the present case, the applicant was required to discharge the onus to the extent the respondent disputed that the applicant was dismissed. Having heard evidence and considered arguments, I cannot find that the applicant discharged the onus that rested on her.

[15] To begin with, the respondent set out the process that gets followed before an educator is appointed with the final step of the process being that an appointment letter signed by the district director must be issued to an educator before commencing work at a school. The respondent’s version in this regard was not gainsaid. In other words, the applicant did not dispute that the steps in the recruitment process set out by the respondent should be followed before appointment of an educator. But the applicant’s contention was that she had been interviewed, signed a contract at the school and was invited to commence work on the 6th of March 2026. What the applicant referred to as a contract was however shown to be the GDE form that she filled at the school, and which form was signed by the principal and the chairperson of the SGB. This form was just but one of the steps before the applicant could have been appointed to teach at the school. But the form the applicant referred to as the contract she signed was the form that the district human resources section should have signed and a form that the district director should also have signed in approval. The human resources section and the district director did not sign this form. If this did not happen, the applicant could not have been appointed.

[16] Also, the principal, having been made aware by the district office that the applicant could not be appointed because she did not possess the necessary qualification, alerted the applicant to this fact, albeit doing so belatedly. When the applicant visited the district office, she was also made aware of this fact. Having heard evidence, it is my conclusion that objective facts point to the applicant not meeting the necessary requirements for appointment to the position. The applicant of course, argued otherwise. But it is my finding that the applicant could not have been appointed in instances where she did not meet the requirements for appointment to the position. Her qualification, in particular the diploma she obtained at STADIO, entitles her to teach at TVET colleges and not at the basic education schools. The applicant, on her own version, did not complete the PGDE that would have qualified her to teach at the Department of Basic Education schools. The applicant thus was not appointed, was not an employee of the department and could not have been dismissed.

[17] Where existence of the dismissal is not established, the Council cannot assume jurisdiction to arbitrate. In SA Rugby Players Association and others v SA Rugby (Pty) Ltd and other (2008) 29 ILJ 2018 (LAC) the court held that:

“The issue that was before the commissioner was whether there had been a dismissal or not. It is an issue that goes to the jurisdiction of the CCMA. The significance of establishing whether there was a dismissal or not is to determine whether the CCMA had jurisdiction to entertain the dispute. It follows that if there was no dismissal, then the CCMA had no jurisdiction to entertain the dispute in terms of s 191 of the Act”.

[18] The Council, just like the CCMA, is a creature of statute and cannot confer on itself jurisdiction it does not have. Where facts, as is the case with the present matter, objectively point to non-existence of the dismissal, the Council cannot assume jurisdiction to arbitrate. As correctly argued by the respondent, dismissal could not exist in instances where the applicant was never its employee to begin with. During cross examination, the applicant did not dispute that she could not have been employed where proper processes, including the appointment letter from the district director delegated to make appointments by the HOD, was not issued. While she (applicant) contended that the principal and the SGB had the relevant information regarding her qualifications during the interviews and confirmed that she could start work at the school, same comes nowhere close to proving that she was employed by the department. Principals and SGBs at schools do not appoint educators but make recommendations to the HOD who appoints educators. The applicant’s reliance on processes that unfolded at the school including her being told that she was successful in the interview and could report for work cannot be confirmation that she was employed.

[19] In the premises, I make the following award:

AWARD
[20] The applicant was not dismissed, and the Council lacks jurisdiction to arbitrate.

[21] The Council is directed to close the file.

Monde Boyce
Senior Panelist: ELRC