20 March 2026 -ELRC408-25/26KZN

Panelist: Sally-Jean Pabst
Case No.: ELRC408-25/26KZN
Date of Award: 19 March 2026

In the ARBITRATION between:

STHEMBISO KHUMBULANI LUNSA MTHEMBU
(Union / Applicant)

and

KWA-ZULU NATAL EDUCATION DEPARTMENT
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This dispute was referred to the Education Labour Relations Council (the ELRC) in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) – an alleged unfair labour practice relating to benefits.
The arbitration was conducted virtually, via Microsoft Teams, on 26 September 2025, 25 November 2025, 20 January 2026 and concluded on 13 February 2026. The parties utilised the services of an ELRC-appointed language interpreter, and the hearings were digitally recorded. After the arbitration the parties submitted written closing arguments via email, the last of which reached me on 3 March 2026.
The Applicant, Mr SKL Mthembu, was present and represented by his attorney, Mr Musawenkosi Mbambo. The Respondent, the Kwa-Zulu Natal Education Department, was represented by Mr S’thembiso A Mkhwanazi.
The parties each submitted into evidence a bundle of documents they respectively relied upon, to which all was agreed between the parties as being what it purports to be.
BACKGROUND
The parties agree that the Applicant Mr Mthembu was appointed by the Respondent since 23 January 1995 to date.
Further that the Applicant applied for an advertised post of Principal at Nkodibe High School. The Applicant was shortlisted for the post, and on 4 July 2024 interviewed for the post of Principal. Subsequent to the interview, the Applicant was recommended on 8 July 2024 by the school governing body (SGB) for appointed in the post of Principal.
The Respondent later decided not to appoint anybody in the position of Princial at Nkodibe High School, and declared on 1 August 2025 via a letter to the Applicant (Applicant bundle page 9) that it intends to not make an appointment and rather re-advertise the post of Principal, explaining at length this decision being based on various listed irregularities in the process leading up to the SGB recommendation, and a subsequent formal complaint received from the union, SADTU.
ISSUE TO BE DECIDED
I must determine whether the Applicant is entitled to acting allowances for the period which he claims he performed the duties.
I must also determine whether the Respondent committed an unfair labour practice by not appointing the Applicant as Principal of Nkodibe High School in terms of and after the SGB of the school recommended him for appointment after he was interviewed for the post.
In relief, the Applicant wishes for the payment of the acting allowances in terms of his performance of the duties as acting Principal. Also, the Applicant wishes to be appointed as Principal in terms of him having been interviewed and recommended for appointment by the SGB.
SURVEY OF EVIDENCE AND ARGUMENT
Below is a summary of only the relevant evidence I found noteworthy in hearing this matter, and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.
Applicant’s Evidence
The Applicant, Mr SKL Mthembu, testified under oath that he was appointed 23 January 1995, and elaborated on his qualifications and teaching diplomas. He is the Deputy Principal of Nkodibe High School, and has been at this school since 15 July 2013. He explained the school has two Deputy Principals, that the other Deputy started at the school in 2020, when he was there already for 7 years. The former school Principal, Mr VL Mayisa, left the school on 31 March 2023, and from 12 April 2023 the Applicant was the acting Principal for the school.
The Applicant’s first acting appointment letter appointed him for the period 12 April 2023 to 30 September 2023. The Applicant testified he only received the acting allowance until October 2023, and thereafter nobody was appointed as Principal, and so he continued to act even though he received no acting letter for those following three months.
For the period from 15 January 2024 to 31 March 2024 the Applicant then received an acting letter again – evidenced on page 2 of the Applicant’s bundle, and so he was paid the acting allowance for this period.
Again there was a gap in his appointment period – this time 13 months – from 1 April 2024 until 4 May 2025. He received a new letter appointing him as acting Principal – this time for 8 months – from 5 May 2025 to 31 December 2025, letter evidenced on page 1 of the Applicant’s bundle.
The Applicant paused to add that he was appointed to act as Principal without ever being interview for the acting position, and during all the gaps between appointment letters, and since December 2025 to date, he continued to perform all of the acting Principal duties and responsibilities.
Regarding his application to be permanently appointment as Principal of Nkodibe High School, the Applicant explained that in August 2023 this post was advertised, and so he applied. Pause to note he was at that point already acting Principal for about 4 months – since 12 April 2023.
The Applicant testified that he was interviewed on 3 April 2024 and there had been nothing disputed about his application. He had a second interview on 4 July 2024, but heard nothing official thereafter, so he had his attorney make contact with the office of the Respondent to enquire about the appointment. To this, eventually the Applicant received a response from the Respondent only on 3 July 2025.
A letter dated 1 August 2025 was referred to, this letter explaining at length what is summarised in the last two paragraphs of the letter, which the Applicant read into evidence:
“The whole process had become contaminated and messy, and it is therefore not advisable for the Head of Department to continue and approve the recommendation as submitted by the School Governing Body. This renders a strong reason for the post to be advertised so that a clean process is conducted afresh.”
The Applicant paused to ad that no meeting followed the abovementioned letter, and he himself had been the candidate recommended by the SGB for appointment. He believes the interviews were conducted fair and correctly, and that it is unfair conduct by the Respondent that no appointment was made. This because he was interviewed, a very long time ago now already, he is fully qualified to be appointed, he was recommended by the SGB, and he has been acting in the position of Principal since 2023 until now. This is why he referred this dispute to the ELRC.
During cross examination the Applicant admitted there may have been fraud allegations, and that this may be why the appointment did not finalise. He knows about the allegations because he saw in the school logbook that the Director visited the school – that he thinks it may have been because of this.
The Applicant concluded that – ever since the former Principle of Nkodibe High School left the school – he has been fully and alone acting as Principle, and carried all of the responsibilities entrusted to a Principal.
The second witness of the Applicant, Mr Lizwe Ncube, testified under oath that he was the chairperson of the SGB during the time the Applicant was interviewed for the Principal post. That the Applicant is the acting Principal at their school since April 2023 – has acted in this capacity uninterrupted until now.
The witness predominantly corroborated the Applicant’s version of the events leading up to the interviews, pausing to ad that on 12 June 2024 they as the SGB conducted a meeting in the boardroom during which they “tried to resolve this problem of the Principal position”. Further that “the Deputy Director General (DDG) said to us we must shortlist and go to interviews” during this meeting, and so that is what they as the SGB proceeded to do.
After the second interview on 4 July 2025 the Applicant was recommended by the SGB as the desired candidate. However, then on 9 July 2025 and on 11 July 2025 the SGB received news from the Respondent that the union SADTU had directed a grievance to HR disputing the erstwhile decision of the DDG that the SGB must proceed to shortlist and interview for the Principal position. The grievance was subsequently escalated by HR to the District Office.
During cross examination the witness confirmed there were issues in the school – issues between himself and the Department of Education, and between the SGB and the Department. That the Department at district level failed to resolve issues, and rather caused more issues, so they wrote to them, to which the DDG had come to intervene – hence the 12 June 2024 meeting in the boardroom.
The witness explained how the establishment of an interview committee (IC) was problematic – that between the DDG’s decision for the SGB to proceed, and the HOD’s authority allegedly undermined by this decision, there ended up being no permanent appointment of a school Principal.
The SGB tried to follow up – on 6 September 2024 they spoke and checked the documents – they even drove there physically. However, the grievance is still at provincial level and there was no grievance outcome. The SGB appointed an attorney to assist, to which in June 2025 they received a response to the attorney, stating that they will take the month of July to consult and respond, but nothing came. Then the Department decided to re-advertise the post in the HRM Circular of 2026. No definite timeline was proviced, but “we are expecting it”.
During cross examination the witness confirmed that their school has two Deputy Principals, and that the Applicant in this matter is the senior of the two Deputies. That the IC is established at school-level by the SGB that establishes the IC. That they, as the SGB, wrote to the Department and asked they take the recommendation-process to the HOD, but not all SGB members have signed this off. They have not had all the signatures, and when they have challenges they cannot handle, they write to the Circuit Manager.
The witness explained that SADTU was present during shortlisting, and that they (SADTU) signed the documentation and did not dispute the shortlisting, but then later SADTU was not present during the interviews, and gave no reason or notice of their absence.
The third witness of the Applicant, Mr Moses Kheyi Mlungwana, testified under oath that he has been part of the SGB of their school – Nkodibe High School – since 2021. He is currently the ‘maintenance’ delegate of the SGB. He testified that the Applicant is the acting Principal of from 2023 to date. That the Applicant’s acting was interrupted only in 2024 when he had received no acting letter, but that he thereafter the Applicant resumed his acting duties.
Further that after the Principal position was advertised, the SGB expected to shortlist and conduct interviews, but they had some concerns to sort out – they were having “some misunderstandings” – so on 8 January 2024 they met with the District Director, Ms Dumisa, who informed them that a letter was received by her office from the SGB requesting the post take at least another year. They were surprised, and wished to see this letter, but Ms Dumisa did not have it there – she just referred to it. However, Ms Dumisa said she will find this letter and revert. On 17 January 2024 Ms Dumisa told them the letter was signed by the SGB members – that 17 of their signatures were on the letter – even that of the witness himself – to which they were surprised, as many of them did not see nor sign this letter. There was a deadline – the deadline was 17 February 2024 – so they were told to continue because there was nothing the District Director could do, and the process had to continue.
In July 2024 final interviews were conducted. The interview scores were submitted, as evidenced on page 5 of the Applicant’s bundle. Then SADTU on behalf of its members lodged a grievance about the interview scores mentioned, apparent irregularities in the processes, and alleged underlying motives in the SGB, and that that was when he (the witness) knew that nobody would be appointed in the position. The SGB attorney told them that the process was to be started over, from scratch, after they already waited 9 months for feedback from the Department. Feedback which was never received.
During cross examination the witness explained that there was a period in the second term of 2024 when the Applicant was not appointed to act as Principle – that the Applicant during that period “acted without any allowance or appointment letter”.
The witness was questioned about the letter the District Director (DD), Ms Dumisa, had referred to. This being the letter with apparently 17 SGB members’ signatures on it, including the witness’ own signature. The witness was asked whether the SGB or any of its members had taken steps to question these alleged illegitimate signatures – this alleged fraud. They witness replied that they had not done anything more than express their surprise, because the letter in the possession of the DD was not seen by them directly, Ms Dumisa only described it to them. Also because they were told that the process will be restarted, and because they also never actually saw the alleged signatures – that is why they left that alone and did not ‘take it further’.
The witness was asked why they had visited the DD in January 2024, to which he replied that they went there to enquire as to the new Interview Committee (IC) because the could not amongst themselves (members of the SGB) agree on the selection of the IC, so they went to ask the DD to intervene. That they had gone as a group of 7 people who disagreed on where the IC selection should be done. There had been a forged signature on a document, so they compared the signed documents. Ultimately the outcome was negotiated and they did resolve it. Mr Masuku offered his help to speak to HR to assist to resolve the problems they are having in appointing a Principal for the school.
The witness was reminded of an SGB meeting held of 12 June 2024, to which he retorted that he is not in possession of minutes to this meeting, that the SGB Chair would have these minutes, as prepared by Ms Mkhize. Further that the resolution of this meeting had been that the DDG said the appointment of the Principal must go to the SGB, and this was complied with. There were two candidates – Mr Thusi and that Applicant Mr Mthembu – interviewed on 4 July 2024. That three candidates had handed up excuses for not attending the interview through the SGB chairperson, and that they decided not to postpone the interviews to allow the three excused candidates to also be interviewed because they had two candidates in attendance and so they proceeded to recommend the Applicant, Mr Mthembu. Thereafter they had a grievance meeting where SADTU expressed concerns, and challenged the process taken back to the SGB. They did not expect anything untoward about interviewing only two people, because the grievance came from SADTU. No grievance outcome was received from the Respondent. They even had 4 people go to the HOD, but a subordinate of the HOD told them on 31 July 2024 to go to Terrence Naidoo in HR, who was off sick, so they left a signed letter in duplicate there to prove they came to enquire, and left.
The witness disagreed that the SGB is devided, retorting that rather they are “cooperative” – that they had misunderstandings and concerns in January 2024 only, whereas the interviews was in July 2024. Further, that the January letter with the illicit signatures has nothing to do with the July interviews, because on 12 June 2024 they had that SGB meeting. That the Respondent not appointing a Principal is not the fault of the SGB being divided – that the SGB disagreement had been resolved between January 2024 and July 2024. The witness retorted finally that the only reason why the position was not filled – why the school now still does not have a Principal – is because of SADTU’s grievance and the Respondent not providing feedback and a grievance outcome.
You were the person actioning on behalf of the SGB, and I am putting to you that because of the division in the SGB, that is why there is no Principal appointed. No disagreements held up, we are waiting for the Dept.
Respondent’s Evidence
The Respondent elected not to call any witnesses.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all of the evidence and argument lead by the parties in coming to my decision on this matter, and provide my reasoning for my decision in the following paragraphs.
The Applicant is claiming an unfair labour practice by the Respondent in terms of 186(2)(a) of the LRA regarding benefits:
“(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving –
(a) 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;…”
The LRA requires employers to treat their employees with fairness and equity in provision of benefits. The Applicant in this matter alleges that he was the victim of an unfair labour practice, and accordingly he bears the onus of proving all of the elements of his claim on a balance of probabilities.
It is common cause that the Applicant, Mr Mthembu, received a number of letters – alltogether three, to my count – in which he was intermittently appointed as acting Principal of the school, Nkodibe High School. The Applicant relies on these for entitlement to the benefit of an acting allowance for acting as school Principal. The letters confirm his appointment periods as follows:
44.1. 12 April 2023 to 30 September 2023 (5½ months) – Respondent’s page 10.
44.2. 15 January 2024 to 31 March 2024 (2½ months) – Applicant’s page 2.
44.3. 1 March 2024 to 31 March 2024 (1 month) – Respondent’s page 7.
44.4. 5 May 2025 to 31 December 2025 (8 months) – Applicant’s page 1.
The duty of a commissioner in an unfair labour practice dispute in terms of a benefit is not to establish whether the Applicant was entitled to the benefit, but rather whether the Respondent under the circumstances prevailing unreasonably and unfairly withheld the benefit. In the case of this specific benefit the Applicant is claiming, there are specific provisions to the entitlement. These provisions, in my view, is quite reasonable. An appointment – particularly to act in a position which is not your usual position, but a more senior more onerous one – should be confirmed in writing, otherwise there is no appointment and no entitlement to extra / acting remuneration for this.
The evidence from the witnesses of the Applicant rang true, and I agree corroborated the facts, but in all the acting letters there were clear end dates to the acting period of each. This would have alerted him that there is an end to the acting periods, and not receiving a new appointment should have told him that he should not expect the additional remuneration. For this reason I strongly disagree with the Applicant’s contention that just the fact that he used to act as Principle could be construed as indication that he has a right to continue to act, and be remunerated until a permanent appointment is made.
If I had been the Applicant, in that exact situation, when I did not receive a new letter to act as Principal I would have immediately ceased performing the acting duties and concurrently written to the Department that I have ceased performance as acting Principal pending a fresh appointment letter as acting Principal received from his employer. This I would have done regardless of whether a favourable reply is expected. In that event, the duties of the Principal might have either been absorbed amongst the members of the staff of the school, or somebody would have been appointed – possibly the Applicant – as acting Principal again. At the very least the Applicant would not have been unsure about his position, nor felt cheated in terms of performing extra duties without being remunerated.
Although my observation was that the Applicant was in no way disingenuous, this is a matter of entitlement, or not. As I mentioned above, it is not my place as commissioner to decide whether the Applicant should now be afforded the benefit, but rather I am tasked with looking back at what had happened, holistically including all events and circumstances which prevailed, and for me to assess whether the Respondent had treated the Applicant unfairly and unreasonably withheld this benefit of acting allowances in terms of a legitimate entitlement. Under the circumstances, I truly can not fault the Respondent, and respectfully submit that the Applicant in performing acting duties should have obtained written authorisation to do so before expecting payment in lieu thereof.
Regarding the Applicant’s claim to be permanently appointed, the fact that the SGB recommended the Applicant for appointment as Principal did not constitute a right to be appointed permanently. A recommendation has to be ratified by the true employer – the Respondent – a not the SGB. The Respondent after all is the true employer, and is the only entity authorised to approve and sign off an appointment, unless the SGB is to be the employer, which is specifically not the case here.
In terms of the Applicant’s claim that the Respondent committed an unfair labour practice by not appointing (him) after he was interviewed and recommended, there is no basis in law for this to be classified an unfair labour practice (ULP) because, before the Head of Department (HOD) as employer has taken a final decision to appoint somebody, there can be no claim to an unfair labour practice in terms of promotion. The dispute before me is also not one of ULP promotion, and appointments fall squarely and only under promotion ULP’s – and specifically only after an appointment has been confirmed, can this be disputed. That is not the case before me, here.
Similarly, seeing as the Applicant was clearly remunerated with acting allowances for all the periods he received appointment letters for, he is entitled to no more than that because, quite simply, he was not appointed during those intermittent periods. As aforementioned, the duties would reasonably have been absorbed among members of the staff and the second Deputy Principal, and the Applicant was in my view not prejudiced because he gained knowledge acting as Principal and this logically enriched his resume as it added to his relevant work experience so he can better promote himself when the post is advertised again. I therefore wish him all the best when he applies.
AWARD
The Applicant Mr Sthembiso K.L. Mthembu was not subjected to an unfair labour practice by the Respondent, the Kwa-Zulu Natal Department of Education, in terms of section 186(2) of the Labour Relations Act 66 of 1995 and his claim is hereby dismissed.