20 May 2026 – ELRC1256-25/26EC

Panelist: Brendon Els Case No.: ELRC1256-25/26EC Date of Award: 22 May 2026

In the ARBITRATION between:

Jeffrey Kapel
(Union / Applicant)

and

Department of Education: Eastern Cape

(Respondent)

Applicant’s representative: Mr Amrose Ngcongolwana
Applicant’s address:
Telephone:
Telefax:
Email angcongolwana@gmail.com

Respondent’s representative: Mr Sakhiwo Kralo
Respondent’s address:
Telephone:
Telefax:
Email sakhiwo.kralo@ecdoe.gov.za

DETAILS OF HEARING AND REPRESENTATION

This is the arbitration award in the dispute between Jeffrey Kapel, the Applicant, and the Department of Education: Eastern Cape, the Respondent. The matter was referred to the Education Labour Relations Council (“the ELRC” / “the Council”) as an alleged unfair labour practice. I was appointed by the Council to arbitrate the dispute.
The arbitration was held over several sittings at the Ethel Valentine Building, Department of Education, Gqeberha (formerly Port Elizabeth). The proceedings commenced on 30 April 2026, at which I issued an interlocutory ruling dealing with the exchange of bundles and the further conduct of the matter. The arbitration commenced on the merits on 5 May 2026 and continued on 12 May 2026, on which date the proceedings were concluded.
The Applicant was represented by Mr Ambrose Ngcongolwana, an attorney of Ngcongolwana Attorneys Incorporated. The Respondent was represented by Mr Sakhiwo Kralo, an Employee Relations Officer of the Nelson Mandela Bay District, assisted by Mr Lee-Roy Pieterse.
The proceedings were digitally recorded and conducted in English. Both parties handed in bundles of documents. The Applicant’s bundle was marked “A” and the Respondent’s bundles were marked “R1”, “RA1”, “RA2” and “RA3” respectively. Where I refer to the documents I do so by reference to the bundle and page concerned.
At the conclusion of the evidence the parties elected to submit written closing arguments. Both parties’ closing arguments were received, and I confirm that I have considered them in their entirety, even where I do not refer to each submission individually below. ISSUE TO BE DECIDED
I am required to determine whether the Respondent committed an unfair labour practice, as contemplated in section 186(2) of the Labour Relations Act 66 of 1995, as amended (“the LRA”), in the manner in which it redeployed and placed the Applicant at Parkside Primary School, and in particular whether the Respondent complied with the procedure prescribed in Collective Agreement No. 4 of 2016 of the ELRC.
More specifically, I must decide whether the Applicant was afforded the opportunity to make written representations as contemplated in item B.6.5.7 of Annexure A to Collective Agreement No. 4 of 2016 before a final decision on his placement was taken, and, if not, what the appropriate relief should be.
If I find that the Respondent did not comply with the Collective Agreement, I am asked by the Applicant to exercise the powers conferred upon an arbitrator by item B.6.9.1 of the Collective Agreement, namely to set aside the decision of the employer and to refer the decision back to the employer for a fresh decision. JURISDICTION AND THE CHARACTERISATION OF THE DISPUTE
The dispute was referred to the Council as an alleged unfair labour practice in terms of section 186(2) of the LRA. Before turning to the merits I must be satisfied that the conduct complained of falls within one of the categories of unfair labour practice listed in that section, and I must identify the category upon which the finding rests.
Section 186(2)(a) of the LRA provides that an unfair labour practice means any 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. It is on this subsection, and specifically on the provision of benefits, that the present matter turns. The Applicant does not complain of a promotion, a demotion, his probation or his training; he complains of the manner in which the employer exercised its discretion in placing him on redeployment, an advantage regulated by an existing collective agreement. The question is therefore whether such a placement is a “benefit” within the meaning of section 186(2)(a).
The meaning of “benefit” in section 186(2)(a) was authoritatively settled by the Labour Appeal Court in Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2013] 5 BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC). The Court rejected the narrow approach previously adopted, which had confined a benefit to an entitlement arising ex contractu or ex lege, and held that the term must be given a wide meaning. A benefit, the Court held, includes not only a right or entitlement to which an employee is contractually or statutorily entitled, but also an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. The Court further held that where an employer exercises a discretion in conferring or withholding such an advantage, the fairness of the exercise of that discretion may be scrutinised under the unfair labour practice jurisdiction.
Applying that test, the placement of an educator who has been declared in excess is plainly an advantage or privilege conferred in terms of an existing policy or practice, namely Collective Agreement No. 4 of 2016, in terms of which the employer exercises a discretion as to the school at which the educator is to be placed. The placement determines where the educator will render service and is an advantage flowing to the educator from an existing agreed scheme. It is, in my view, a benefit as that term has been interpreted in Apollo Tyres, and the fairness of the manner in which the employer exercised its discretion in conferring it is justiciable as an unfair labour practice relating to the provision of benefits under section 186(2)(a).
I am mindful that the unfair labour practice jurisdiction does not extend to a demand for the creation of a new benefit or to an interest dispute about what the terms of a benefit ought to be, as was recognised in Hospersa and Another v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC) and in Protekon (Pty) Ltd v CCMA and Others (2005) 26 ILJ 1105 (LC). This matter does not engage that limitation. The Applicant asserts no new entitlement and seeks no improvement of the scheme; he complains only that an existing benefit, governed by an existing collective agreement, was conferred upon him through a procedure that was not fairly applied. The complaint accordingly falls squarely within section 186(2)(a) and not outside it.
For completeness, the dispute is in any event one concerning the interpretation and application of a collective agreement, and item B.6.9.1 of Annexure A to Collective Agreement No. 4 of 2016 expressly confers upon an arbitrator appointed by the ELRC the power to set aside a placement decision and to refer it back to the employer for a fresh decision. The relief sought by the Applicant is precisely the relief for which that item provides. I am therefore satisfied that I have jurisdiction to determine the dispute and to grant the relief sought, and that the conduct complained of constitutes an unfair labour practice within the meaning of section 186(2)(a) of the LRA. BACKGROUND TO THE DISPUTE
The following facts are common cause or were not disputed by the Parties.
15.1 The Applicant is employed by the Respondent as a Post Level 1 educator and was, at the relevant time, stationed at Red House Primary School. He has been an educator for approximately ten years.
15.2 Following the issuing of the post-provisioning norms (PPN) for 2026, one educator at Red House Primary School had to be declared in excess of the staff establishment. The Applicant volunteered to be declared in excess and to be redeployed, and the principal confirmed his volunteering in writing.
15.3 On 13 January 2026 the Applicant completed and submitted his “Choice Form for additional educator on post-provisioning 2026”, in which he nominated, in order of preference, three schools: Greenwood Primary School, Settlers Park Primary School and Walmer West Primary School. The choice form was countersigned by the principal.
15.4 A meeting of the District Task Team (“DTT”) was convened on 21 January 2026 to deal with the placement of educators who had been declared in excess. The Applicant attended that meeting. During the meeting he requested and was granted leave to go to the Human Resources (“HR”) office, and he did not thereafter participate further in the placement process conducted in the meeting.
15.5 On 22 January 2026 the Respondent took a decision to place the Applicant at Parkside Primary School, a school which the Applicant had not nominated on his choice form. A placement letter dated 22 January 2026 was generated, but it was only delivered to the Applicant on 28 January 2026.
15.6 It is common cause that the Applicant was never afforded the five working days’ opportunity to make written representations contemplated in item B.6.5.7 of Annexure A to Collective Agreement No. 4 of 2016 before the decision to place him at Parkside Primary School was taken. The Respondent’s explanation for this is that the Applicant forfeited that opportunity by leaving the meeting of 21 January 2026 and not returning.
The Applicant disputed the fairness of the placement and lodged a grievance and contestation. The dispute was referred to conciliation and, remaining unresolved, was referred to arbitration. The relief sought by the Applicant is that the placement decision be set aside and that the status quo ante be preserved until he has been afforded the opportunity to make written representations relating to his personal circumstances. SURVEY OF THE EVIDENCE AND ARGUMENT
What follows is a summary of the material evidence and argument. It is not a verbatim record. I have considered all of the evidence led and all of the submissions made, but refer below only to that which is necessary for the determination of the dispute.

The Applicant’s case

The Applicant called Ms Nomakhwezi Matwane and testified himself.
Ms Matwane is a Departmental Head at Red House Primary School and the Applicant’s immediate supervisor. She testified that the Applicant is a capable and experienced educator who has taught Grade 7 for some ten years and who is multilingual and competent in English, Afrikaans and isiXhosa. She testified that Afrikaans had been offered at the school in 2018 and 2019 and that the Applicant is capable of teaching Afrikaans. She testified to the negative impact of the Applicant’s removal on the school, but conceded under cross-examination that she was not present at the meeting of 21 January 2026 and that the Respondent had not, in her view, flouted the Collective Agreement. She testified, however, that in her experience an educator who could not be matched would ordinarily remain at his or her school, and that it would be unfair to place an educator without first affording an opportunity to make representations as to personal circumstances.
The Applicant testified that he was the first educator to submit his choice form. He attended the DTT meeting of 21 January 2026, at which the CMC Head, Ms Phinda Nyoka, explained the process and referred to a “verbal” requirement that choices be confined to the educator’s own circuit, which had not appeared in any of the documents provided. He asked to be excused to go to HR to clarify the position and was told there that his information had already been captured on the system. He returned to the meeting venue, observed that nothing further was happening in relation to his matter, and then left. He testified that he was never afforded an opportunity, whether orally or in writing, to make representations regarding the schools to which he might be placed.
The Applicant testified that he received the placement letter, dated 22 January 2026, only on 28 January 2026, and that he contested it immediately. He testified that the withholding of the letter for six days had the effect of depriving him of the five working days within which to make representations. He further testified as to his personal circumstances, in particular that in 2022 he had been hijacked, assaulted and held captive in the Northern Areas, an incident of which he said the employer ought to have been aware, and that placement in or near that area would be deeply distressing to him. He testified that none of these circumstances could be placed before the decision-maker because no opportunity to make representations was afforded to him.
On the question of the medium of instruction, the Applicant testified that he understood the relevant column on the profile to relate to the medium of instruction at his current and previous school (Red House, which is an English-medium school), and not to a declaration of the languages in which he was personally competent to teach. He testified that his competencies, recorded elsewhere in the profile, reflected qualifications to teach English, Afrikaans (first additional language) and isiXhosa, and that he had requested, but never received, the criteria used by the Respondent to conclude that he did not meet the profiles of the schools he had chosen.

The Respondent’s case

The Respondent called three witnesses: Mr Sikelelo Vena, a Circuit Manager; Mr Fadiel Jaggers, a District Task Team member and NAPTOSA representative; and Mrs Zanele Mahlatini, the principal of Red House Primary School.
Mr Vena testified that the Applicant volunteered to be in excess and was not identified by the Department. He explained that the purpose of the meeting of 21 January 2026 was to assist identified educators by verifying their choices against the profiles of the schools and, where there was no match, to assist them to select an alternative school. He testified that the Applicant’s three choices did not match the schools concerned: in respect of two schools the Applicant could not, on his profile, teach Grade 7 (a senior-phase grade for which, Mr Vena said, the Applicant’s intermediate-phase qualification did not provide), and in respect of Walmer West the medium of instruction was English and Afrikaans whereas the Applicant’s profile reflected English only. He testified that the Applicant left the meeting for HR and never returned; that he personally went to look for the Applicant at HR and could not find him; and that he twice asked the principal to locate the Applicant, who relayed that the Applicant had said his matter was being handled by HR and that they need not be concerned. He testified that, because the Applicant was not present, the committee could not raise these matters with him, and that it proceeded to place him at Parkside Primary School, which matched his profile.
Under cross-examination Mr Vena accepted that item B.6.5.7 requires that an educator be given the opportunity to make written representations within five working days before a final decision is made. His answer to the alleged failure to afford that opportunity was that the Applicant had relinquished his right by leaving the meeting and that the decision was therefore not punitive. He conceded that he could not produce minutes of the meeting of 21 January 2026, contending that the information had been captured on the CMC Head’s laptop.
Mr Jaggers, a DTT member of long standing and a former principal and NAPTOSA representative, testified that the function of the DTT is to ensure that the redeployment process is fair and transparent. He corroborated that the Applicant attended and then left the meeting and did not return. Significantly, when asked whether it would be unfair to redeploy an educator without affording an opportunity to make written representations, he answered that it would be unfair if such a representation had been requested and not afforded. He confirmed that an educator may also dispute or appeal an in-excess identification.
Mrs Mahlatini, the principal, testified that she forwarded the meeting invitation to the Applicant and that she was not present at the meeting. She confirmed the Circuit Manager’s evidence regarding the telephone calls and the Applicant’s statement that HR was handling his matter. She confirmed that the placement letter was dated 22 January 2026 but received only on 28 January 2026, which she forwarded to the Applicant. She conceded that she did not know what had transpired at the meeting of 21 January 2026.

Closing arguments

The Respondent submitted, in essence, that the decision to redeploy is the employer’s decision and that the focus in an unfair labour practice dispute is on the procedure followed; that the Applicant met the profile of Parkside Primary School; that he was not entitled, on his qualifications, to teach Grade 7 and had not declared Afrikaans as a medium of instruction; and that, by leaving the meeting, the Applicant forfeited the opportunity to clarify his position and to make representations. The Respondent prayed for the dismissal of the dispute.
The Applicant submitted that the meeting of 21 January 2026 was not constituted by the School Governing Body as contemplated in the Employment of Educators Act 76 of 1998 and the Collective Agreement; that the five working days’ written representation contemplated in item B.6.5.7 was peremptory and was never afforded; and that the failure to observe the audi alteram partem principle vitiated the decision. He prayed that the decision be set aside and the status quo ante preserved until he is afforded the opportunity to make written representations. ANALYSIS OF THE EVIDENCE AND ARGUMENT
It is convenient to record at the outset what is not in dispute. It is common cause that the Applicant volunteered to be declared in excess; that he completed a choice form nominating three schools; that he was placed at a fourth school, Parkside Primary School, which he had not nominated; and – most importantly – that he was never afforded the opportunity to make written representations contemplated in item B.6.5.7 before that decision was taken. The dispute is, in truth, a narrow one: was the failure to afford that opportunity a breach of the Collective Agreement, and if so, was the placement procedurally unfair?
I accept the Respondent’s submission that the decision whether and where to redeploy an educator is, in principle, the employer’s decision, and that my function is not to substitute my own view for that of the employer but to determine whether the decision was arrived at fairly. The enquiry is therefore directed principally at the process followed.
The starting point is the Collective Agreement itself. Item B.6.5.7 of Annexure A to Collective Agreement No. 4 of 2016 provides:
“In the event that none of the educator’s choices in terms of paragraph B.6.5.3 can be realised, the employer must first give the educator an opportunity to make written representations, e.g. personal circumstances, about the intended transfer to the specific school or schools within five working days before a final decision is made.”
The language of item B.6.5.7 is peremptory. The employer “must first” give the educator the opportunity to make written representations, and it must do so “before a final decision is made”. The provision is engaged precisely in the circumstances that arose here, namely where none of the educator’s choices can be realised. On the Respondent’s own version, none of the Applicant’s three choices could be realised, and it was for that reason that the Respondent placed him at a school he had not chosen. The trigger for item B.6.5.7 was therefore squarely present.
Item B.6.5.8 reinforces the point. It provides that the opportunity to make a representation “must be given to the educator before the school governing body recommends the transfer of such educator to their school”. The opportunity to be heard is thus built into the process as a pre-condition to the recommendation and the decision, and not as something that arises only if and when an educator happens to ask for it.
I am unable to accept the Respondent’s central contention that the Applicant forfeited or abdicated his right to make written representations by leaving the meeting of 21 January 2026. There are several difficulties with that contention.
35.1 First, item B.6.5.7 does not condition the right to make written representations on attendance at a meeting. The right is to make written representations, within five working days, before a final decision is made. It is a free-standing procedural protection. The Respondent’s evidence conflated the verification meeting of 21 January 2026 with the distinct, written, pre-decisional process contemplated by the Collective Agreement. Mr Vana’s evidence that the matter “would have been addressed in the meeting” does not meet the requirement of an opportunity to make written representations within a defined period before the decision.
35.2 Secondly, the obligation rests on the employer. The provision states that the employer “must first give” the opportunity. The duty to initiate the process is the employer’s; it does not depend on a request by the educator. Mr Jaggers’ evidence – that the opportunity would be afforded “if requested” – with respect, does not reflect the wording of the Collective Agreement, which imposes a positive and unconditional obligation on the employer.
35.3 Thirdly, the sequence of events is telling. The verification meeting took place on 21 January 2026 and the decision to place the Applicant at Parkside Primary School was taken the very next day, on 22 January 2026. On the Respondent’s own version the decision was therefore taken without any period at all having been allowed for written representations, and certainly not the five working days the Collective Agreement requires. Whatever the Applicant did or did not do at the meeting, the employer simply did not afford the five working days before deciding.
35.4 Fourthly, the placement letter, although dated 22 January 2026, was delivered to the Applicant only on 28 January 2026. This compounded the difficulty: even the post-decision communication of the outcome was delayed, and the Applicant’s evidence that he was thereby deprived of any meaningful opportunity to engage the decision before it became operative was not satisfactorily answered.
The significance of the failure to afford the opportunity is well illustrated by the Applicant’s own circumstances. He testified to a traumatic hijacking, assault and abduction in the Northern Areas in 2022. Whatever the ultimate weight of that evidence, item B.6.5.7 expressly contemplates that an educator may raise “personal circumstances” of precisely this kind. The whole purpose of the written-representation stage is to allow such matters to be placed before the decision-maker before a final decision is taken. By dispensing with that stage, the Respondent denied itself the opportunity to consider material that the Collective Agreement specifically envisages, and denied the Applicant the opportunity to place it before the decision-maker.
I should deal briefly with the substantive disputes concerning Grade 7 and the medium of instruction, because the Respondent placed considerable reliance on them. There was a genuine factual dispute as to whether the Applicant’s qualifications permitted him to teach Grade 7, and as to whether he had properly declared his competence in Afrikaans as opposed to recording the medium of instruction at his current school. These are matters that go to the merits of the placement. They are, however, precisely the kind of matters that ought to have been ventilated through the representation process. It is not necessary for me to resolve them, and it would not be appropriate for me to do so, because the proper forum for their resolution is the very process that the Collective Agreement prescribes and which was not followed. I make no finding on whether the Applicant does or does not meet the profile of any school. I find only that the process by which that question was answered was procedurally unfair.
I have considered the authorities relied upon by the Respondent. The proposition that an educator’s consent is not required for a transfer within the same provincial department may be accepted, but it does not assist the Respondent: the Applicant’s complaint is not the absence of his consent, but the absence of the procedure that the Collective Agreement requires before a decision is taken. Similarly, the principle that fairness must balance the interests of employer and employee is sound, but in this matter the Collective Agreement has itself struck that balance by prescribing a specific procedure, and the Respondent did not observe it.
I have also considered the Respondent’s submission that the District Director, in confirming the placement, would not have done so had there been any irregularity. That submission cannot cure a procedural defect that occurred before the decision was taken. The confirmation of a decision reached without affording the prescribed opportunity does not render the process fair.
It follows, on facts that are substantially common cause, that the Respondent failed to comply with item B.6.5.7 of Annexure A to Collective Agreement No. 4 of 2016, and that the placement of the Applicant at Parkside Primary School was for that reason procedurally unfair. For the reasons set out under the heading of jurisdiction above, the placement of a redeployed educator is a benefit within the meaning given to that term in Apollo Tyres, and the unfair manner in which the employer exercised its discretion in conferring that benefit constitutes an unfair labour practice relating to the provision of benefits as contemplated in section 186(2)(a) of the LRA.
As to relief, the Applicant did not seek substitution of the decision or placement at a school of his choice; he sought only that the decision be set aside and that he be afforded the opportunity that the Collective Agreement requires. That is the relief expressly contemplated by item B.6.9.1, which empowers an arbitrator to set aside the decision of the employer to transfer an educator to a specific school and to refer the decision back to the employer for a fresh decision where the educator has not been given an opportunity to make representations about the specific school to which the employer intends to transfer him. That relief is fair to both parties: it does not dictate the outcome of the placement, but it requires that the outcome be reached in the manner the Collective Agreement prescribes.
In the result I make the award set out below. AWARD
I make the following award:
43.1 The Respondent, the Department of Education: Eastern Cape, committed an unfair labour practice relating to the provision of benefits, as contemplated in section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended, in relation to the redeployment and placement of the Applicant, Mr Jeffrey Kapel, in that it failed to afford him the opportunity to make written representations as required by item B.6.5.7 of Annexure A to Collective Agreement No. 4 of 2016 before taking the decision to place him at Parkside Primary School.
43.2 The decision of the Respondent dated 22 January 2026 to place the Applicant at Parkside Primary School is set aside, and the decision is referred back to the Respondent for a fresh decision, in terms of item B.6.9.1 of Annexure A to Collective Agreement No. 4 of 2016.

43.3 The Respondent is directed, before taking any fresh decision, to afford the Applicant the opportunity to make written representations regarding his personal circumstances and the intended transfer, within five working days, in accordance with item B.6.5.7 of Annexure A to Collective Agreement No. 4 of 2016, and to consider such representations before a final decision is made.

43.4 Pending the taking of a fresh decision in accordance with this award, the status quo ante is to be preserved, and the Applicant is to remain at Red House Primary School.