20 May 2026 – ELRC198-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN GQEBERHA

Case No: ELRC198-25/26EC

In the matter between

TB Gomba Applicant

and

Department of Education: Eastern Cape First Respondent

ZR Nxopho Second Respondent

ARBITRATOR: AW Howden

HEARD: 6 May 2026

DATE OF AWARD: 20 May 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

The dispute was scheduled for Arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended) (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (as amended 25 July 2023). The arbitration commenced on 17 September 2025 and was concluded on 6 May 2026 at the offices of the Department of Education – Eastern Cape in Gqeberha.
The Applicant, Ms TB Gomba, was present and was represented by Adv D Rwentela. The instructing attorney was Ms L Mehlomakulu from LM Attorneys.
The First Respondent, Department of Education – Eastern Cape, was represented by Ms A Slabbert from the Labour Relations Department.
The Second Respondent, ZR Nxopho, was present and was represented by Mr R Mtywaru from SADTU.
On the final day, the parties requested that the Closing Arguments be submitted in writing. It was agreed that the parties would submit the written Closing Arguments simultaneously on 13 May 2026, before the close of business.
The Closing Arguments for the parties were received timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

This matter came before the Council in terms of Section 186 (2) (a) of the LRA. I am required to determine whether or not the Respondent committed an unfair labour practice by not appointing the Applicant to the position.

BACKGROUND TO THE DISPUTE

The Applicant at the time of her application was employed by the Respondent as a PL 2 Educator (Departmental Head – HoD) at the Luthando Luvuyo Special School since 2002. The Applicant has subsequently been appointed as the Deputy Principal at the same school.
The Applicant applied for the promotional post of Principal PL4 at the Luthando Luvuyo Special School as advertised in Bulletin Volume 3 of 2024 Post No 254.
The Applicant met all the minimum requirements and was short listed and interviewed, however was not appointed.
The Applicant seeks that the appointment of the Second Respondent be set aside and she be appointed in the position of Principal from the same date that the Second Respondent was appointed into the position.

SURVEY OF EVIDENCE AND ARGUMENT

It is common cause between the parties:

That the Applicant was employed as a PL2 Educator (HoD) at the Luthando Luvuyo Special School, since 2002.
That the Applicant applied for the position of Principal PL4 at the Luthando Luvuyo Special School as advertised in Bulletin Volume 3 of 2024 Post Number 25.
That the Applicant applied for the post and met all the minimum requirements and was short listed and interviewed on 10 March 2025.
That the Applicant was placed second according to the SGB recommendations, however, was jointly second with a Mr MT Mafuya.
That the person that was placed first, the Second Respondent, was appointed by the Head of Department (HOD) and assumed duties on 1 May 2025.
That the selection was done by an independent panel of government officials.

The issues in dispute are substantive as well as procedural issues. The procedural issues referred to are:

The appointment of the Independent Panel.
The procedure for the SGB recommendation, to appoint the Second Respondent by the HOD, that was not followed correctly (Non-compliance with the Employment of Educators Act 76 of 1998: (6) (3) (b)/(f)) (the EEA).

The Applicant’s Representative raised a further issue in dispute, namely “The reason for the re-advertisement of the initial post (First procedure) was due to undue influence”.
On 25 August 2025 a ruling was issued, which has subsequently been reinforced by a further judgement (Balstron Fortein v ELRC and Others C20/2023), which states:

Paragraph (12) It is therefore my finding that should the Applicant wish to dispute the First process, a referral specifically disputing that First process will have to made with the relevant application for condonation.

Paragraph (13) It is further my finding that should the Applicant wish to make use of the documents from the First process in the Second process; the Applicant would have to make comprehensive submissions with regards to the relevance of the documents from the First process that are to be used in the Second process. Only then could an informed decision be made on the discovery of documents as required by the Applicant.

This did not take place and on 5 November 2025, on record, it was again reiterated that any act/document which relates directly to the First process will not be taken into consideration until a referral with an application for condonation is received and approved by the Council, and the matters joined.
The Respondent handed in a Bundle of documents. (Respondent Bundle A). The Applicant subsequent to commencing handed in a Bundle of documents (Applicant Bundle B). The documents were not in dispute and it was agreed that the documents’ contents were what they purported to be.
At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Case

The crux of the Applicant’s matter is that she should have been promoted into the position as she was the better candidate, however she was prejudiced by the First Respondent. The Applicant further alleged that the Respondent committed procedural errors during the appointment process.

The Respondents’ Case

The crux of the Respondent’s matter is that the Applicant was not the better candidate on the day and that the Respondent followed the correct procedure when making the appointment of the Second Respondent.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an 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 common cause that the position was advertised by the First Respondent with the basic requirement being: A three- or four-year qualification which must include a professional teacher qualification and seven years actual teaching experience. Plus, the position was advertised with the following: Management and Administration/Experience in Special Needs.
It is common cause that both the Applicant and the Second Respondent met these requirements.
Looking at qualifications. It is noted that the Applicant has a Teachers Diploma, a BA: Degree and a BA Honours Degree which focuses on special needs. The Second Respondent on the other hand has a Teachers Diploma and an Advanced Certificate in Education Leadership.
On face value it would seem as if the Applicant was better qualified than the Second Respondent, however this is not a deciding factor, merely one of the factors one needs to look at.
Looking at experience. The Applicant at the time had 31 years of experience and was an HoD – PL 2 Educator. The Second Respondent at the time had 27 years of service and was a Deputy Principal. Their experience as Educators with the First Respondent are more or less the same, however it is recognised that their functions differed. Both had experience in Special Needs.
Looking at management experience. The Applicant was appointed as a HoD – PL2 in 2002 and acted as Principal for a period of approximately 12 months. The Second Respondent was appointed as a Deputy Principal on 1 February 2019 and acted as Principal for 6 months.
On face value it would seem as if the Applicant had more management experience than the Second Respondent, however one would need to get into far more detail to determine the actual “level” of experience of each. This however is not a deciding factor, merely one of the factors one needs to look at.
Looking at the scoring by the Independent Panel. The Applicant scored a total of 59 and the Second Respondent scored 72 which is a significant difference. One can argue that the interview carries the most weight when deciding which of the candidates must be appointed, as it is not just the scoring that is taken into consideration. The person’s character and fit with the position and organisation is just one example that would be taken into account during the interview.
The Applicant stated that she was prejudiced during the interviews. It is noted however that during evidence-in-chief the Applicant did not make much of the panel’s scorings except to mention that Nogaga was the problem, although Nogaga was not part of the panel.
The Applicant’s witness, Mvubu, testified that he did not trust two panellists as they are from SADTU and were biased. The witness and the Applicant are with NAPTOSA. The witness further testified that he was not happy with the scoring. The witness however did not provide any evidence to prove that the panel was biased or provide any evidence to substantiate his comments with regards to the scoring, as everything was based on his own opinion.
The witness, Mvubu, when initially called as a witness opted to make use of his home language IsiXhosa, which in normal practice would not be an issue. During his testimony it became evident that he was using an IsiXhosa that was not understood by the interpreter on the day and the matter had to literally stand down. When reconvening the witness decided he would use English to testify and went through a large portion of the day using rather fluent English and hardly ever referred to IsiXhosa.
The question that can be asked is, why did the witness not revert to English on the first day or even to a version of IsiXhosa that the interpreter could understand. The witness was prepared to waste valuable time and money, purely based on him wanting things done his way. To this end how much weight can be assigned to his version of the interview proceedings which was based purely on own opinion.
It needs to be noted that at the end of the Short Listing process the Minutes indicate “both unions declared the entire proceedings as being fair and non-discriminatory. It further needs to be noted that at the end of the Interview process the Minutes indicate that “At the end of the interview process, it was agreed that the entire process went well. Both unions present declared the proceedings as being fair”. This raises the question of why Mvubu did not raise his issues at the proceedings, where he had the opportunity to do so. Mvubu had raised an issue with regards to the recording of the proceedings, which was duly minuted by the Chairperson, so why not raise the issues now mentioned at this arbitration, at the interview process itself.
The Applicant made comments that Nogaga was the person holding her back for appointments and had something against her. The Applicant was unable to provide any evidence in this regard and in cross-examination confirmed that Nogaga had actually agreed to her appointment as Acting Principal at some point, thereby contradicting her original comments of being prejudiced by him. It further needs to be highlighted that the Applicant has recently been appointed as Deputy Principal.
The Applicant has requested that the Second Respondent’s appointment be set aside and she be appointed into the position. The Applicant during evidence-in-chief failed to provide compelling evidence with regards to the other candidates.
In National Commissioner of the SAPS v Safety and Security Bargaining Council and others (2005) 26 ILJ 906 (LC) the court stated that the applicant must show that not only was he/she the better qualified and better suited for the post than the successful candidate who was appointed, but also that he/she was the best of all the candidates who applied for the position.
It is further trite that the decision to promote or not promote falls within the managerial prerogative of the employer and in the absence of gross unreasonableness or bad faith or where the decision relating to the promotion was seriously flawed, an arbitrator should not readily interfere with the exercise of that discretion.
The Applicant’s representative has made much of the appointment of an Independent Panel.
Collective Agreement 1 of 2024 Paragraph (9) Independent Interviewing Committees:
9.1 Where it is not possible for an Interview Committee to be constituted as per this collective agreement or the Personnel Administrative Measures (PAM) or the Employment of Educators Act 76 of 1998, due to incompetency, dysfunctionality or conflicts, the HOD or Delegated Authority may appoint an Independent Panel to do the short listing, interviews and recommendation, provided such an Independent Panel will perform its work in the presence of union representatives as observers.
9.2 Before the HOD appoints an Independent Panel, the HOD must comply with the provisions of Section 25 (1) of the South African School Act, no 84 of 1996.
Collective Agreement 1 of 2024 Paragraph (11) Ratification by the School Governing Body.
11.3 In cases where the School Governing Body has requested for an Independent Panel, the Independent Panel must conduct ratification and inform the respective School Governing Body (SGB) of an outcome.
In this instance the SBG had requested that an Independent Panel make the appointment of the school Principal due to the SGB feeling “threatened for their lives and not safe”. (Bundle A page 6). The feeling of being threatened and unsafe was confirmed by the Applicant’s witness Maswana who had allegedly been threatened, although this took place during the first process.
The SGB requested the Independent Panel, however it has been implied that the SGB was coerced into doing so although there is no evidence of this. The approval of the HOD or Delegated Official was obtained and the Independent Panel duly appointed. The process thereby being compliant with the collective agreement. The appointment of the Independent Panel and the letter from the SGB requesting the Independent Panel was not challenged once during the whole Short Listing/Interview process by the then SGB.
The Applicant’s Representative made much of the ratification meeting being chaired by the Chairperson of the Independent Panel. Paragraph (40) above is self-explanatory. Ratification must be done by the Independent Panel, and the panel must only inform the respective SGB of the outcome.
Paragraph (11.1) speaks specifically of the ratification being done under normal circumstances by a quorum of the SGB. Paragraph (11.4) speaks specifically of the ratification being done by the Independent Panel after the HOD had withdrawn their powers and they must report on the outcome of the recruitment process to the entire SGB. In the instance before the Council the SGB’s powers were not withdrawn by the HOD. (* Emphasis added).
The “ratification” meeting convened, allegedly with no quorum, therefore meets the requirements of the collective agreement (Para 11.3). It however needs to be noted that a meeting was called, some SGB members attended, others excused themselves, others were allegedly not informed and the chairperson of the SGB, Pilisa, decided that she was not even going to attend.
The Applicant’s Representative made much of the First Respondent not applying equity in the province, using a somewhat blanket approach. During evidence-in-chief the Applicant did not submit any evidence to prove what the First Respondent’s goals were for the province or regions. In fact, the Applicant did not make much of this aspect during evidence-in-chief at all. The First Respondent on the other hand called two witnesses that confirmed that they had looked at the school as at the time, as the senior management team was made up of four or five females. The Second Respondent being the only male.
The Applicant’s Representative and the witness Mvubu made much of a letter (HRM Circular 14 of 2019) that refers to short listing and interviews being recorded. The First Respondent’s witness Vena who was also the Chairperson of the Independent Panel confirmed that he had never heard of the document, had never heard of it being applied at their processes and referred to who the circular was sent to, namely All Head Office Staff. Thereby implying that it was only meant for Head Office staff.
The Applicant did not rebut this statement in any meaningful way and when considering the content of the circular it seems apparent that this only applies to Head Office staff. Nowhere in Labour Law is there a requirement that short listing and interview processes need to be recorded, and I fail to see how this would be considered a procedural issue.
The Applicant’s Representative alleged that, due to Nogaga signing the document (Bundle A page 50) twice and the fact that the CES: Education and Governance did not sign the document, made the document irregular. The First Respondent’s witness Nogaga explained that there was no Principal at the time, so he had to sign on behalf of the school and then had to sign due to his capacity as EDO over the school. The Applicant was unable to rebut this statement in any meaningful way.
The First Respondent did not provide a reason for the document not being signed by the CES, beside it being an administrative error. This will however be dealt with below in paragraph (53).
The Applicant’s Representative made much of the fact that there was no comment with regards to who was recommended as the second and third candidates, should the first candidate decline as per the EEA.
In Observatory Girls Primary School and another v Head of Department of Education Provice of Gauteng No 2/15349 [2006]JOL 17802 and Douglas Hoerskool en ander v Premier Noord Kaap en ander 1999 (4) SA 1131 (NC) it has been held that strict compliance with guidelines for appointments provided for in the PAM and ELRC Collective Agreements is not necessary. Substantial compliance is sufficient, as one does not want to go digging to find points to stymie the process of appointing a suitable candidate.
In the matter before the Council, I find that this is the second time the position has been advertised, the interest of the children need to be taken into consideration for the continued smooth running of the school, as well as the issues raised would not have had any affect on the appointment, had they been duly completed.
Taking into consideration all the above, the submissions of the parties, and on the balance of probability, it is my finding that the First Respondent had not committed an unfair labour practice by not appointing the Applicant to the position.
I therefore make the following award:

AWARD

The Applicant, TB Gomba, has failed to prove that the First Respondent, the Department of Education – Eastern Cape, committed an unfair labour practice relating to promotion in terms of Section 186 (2) (a) of the LRA.
The Applicant’s dispute referral is dismissed.