Panelist: Brendon Els
Case No.: ELRC820-25/26KZN
Date of Award: 19 May 2026

In the ARBITRATION between:

Taleni Zukiswa
(Union / Applicant)

and

Education Department of Kwa-Zulu Natal

(First Respondent)

and

Sibusiso Xaba
(Second Respondent)

Applicant’s representative: Mr Nkosiphi Nyandu
Applicant’s address:
Telephone:
Telefax:
Email

Respondent’s representative: Absent
Respondent’s address:
Telephone:
Telefax:
Email

 
DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down for arbitration before me on 23 April 2026 at 09h00 by way of the Microsoft Teams virtual platform, under the auspices of the Education Labour Relations Council (“the ELRC”).
2. The Applicant, Ms Zukiswa Taleni, was present and was represented by Mr Nkosiphi Nyandu, a Labour Relations Officer of the National Union of Public Service and Allied Workers (“NUPSAW”), an affiliate of SAFTU.
3. There was no appearance for or on behalf of either the First Respondent or the Second Respondent. The matter stood down until 09h35 to allow for the late attendance of either of the Respondents, and no party joined the platform on behalf of either of them.
4. Having had regard to the notice of set‑down, I was satisfied that both the First Respondent and the Second Respondent had been duly notified of the date, time and platform of the proceedings. The notice of set-down in respect of the First Respondent was served on no fewer than six departmental email addresses, including those of the relevant District and Provincial officials. The Second Respondent, Mr Kaba, the incumbent appointed to the post in dispute, was duly joined to these proceedings and served with the notice of set-down at the email address provided. Neither the First Respondent nor the Second Respondent communicated any difficulty with attendance, and neither tendered any explanation for his or its absence.
5. Having regard to clause 17 of the ELRC Dispute Resolution Procedures, and the principles enunciated by the Labour Appeal Court in cases such as MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani [2004] 4 BLLR 401 (LAC) on default proceedings, I was satisfied that it was appropriate to proceed by way of default arbitration against both Respondents. The Applicant led oral evidence under oath, and the Applicant’s representative thereafter delivered written closing arguments under affidavit on 30 April 2026.
6. The proceedings were digitally recorded and conducted in English.

ISSUE TO BE DECIDED

7. The dispute is referred as an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA. The issues that fall to be determined are the following:
   7.1 Whether the conduct of the Respondent in the recruitment, shortlisting and appointment process pursuant to advert HRM 20 of 2024, in respect of the post of Departmental Head: Senior Phase at Hlelingomuso Primary School, constituted an unfair labour practice relating to promotion as contemplated by section 186(2)(a) of the LRA;
   7.2 If so, whether the Applicant has established the factual and jurisdictional basis for the relief which she seeks, namely protected promotion to the post in question, alternatively the setting aside of the appointment of the incumbent and re-advertisement of the post, together with compensation; and
   7.3 What appropriate relief, if any, ought to flow from any such finding.

BACKGROUND TO THE DISPUTE

8. The Applicant is employed by the Respondent as an educator at Hlelingomuso Primary School, in the province of KwaZulu-Natal. She has been so employed for a number of years and was, at all times material to this dispute, the substantive incumbent of an educator post at the said school.
9. On 8 May 2022 the Applicant was formally appointed to act in the post of Departmental Head: Senior Phase at the school. She continued to act in that position uninterruptedly from that date until the appointment of the successful candidate took effect.
10. In or about August / September 2024 the Respondent published an advert under reference HRM 20 of 2024, which contained a number of educator promotional posts. One of the posts so advertised was the post of Departmental Head: Senior Phase at Hlelingomuso Primary School – the very post in which the Applicant was acting.
11. The Applicant duly applied for the post. Interviews in respect of the post were conducted in or about March 2025. The Applicant was not invited to attend the interview when the shortlist was originally compiled. Following intervention by her shop steward at the school, the Applicant was thereafter shortlisted and invited to the interview, but was given only four (4) working days’ notice prior to the date of the interview.
12. The successful candidate (“the incumbent”) was identified by the Applicant as Mr Kaba. The appointment took effect in or about September 2025. By that time the Applicant had been acting in the post for approximately three (3) years and three (3) months.
13. The Applicant referred the present dispute to the ELRC as an unfair labour practice in terms of section 186(2)(a) of the LRA. Conciliation having failed to resolve the matter, it was set down for arbitration on 23 April 2026.

SURVEY OF EVIDENCE AND ARGUMENT

14. The Applicant testified under oath. Her evidence is uncontested; both the First Respondent and the Second Respondent having elected not to appear. The salient features of her testimony, as supplemented by the closing affidavit deposed to by Mr Nyandu on 30 April 2026, may be summarised as follows.
    14.1 She had been formally appointed to act in the post of Departmental Head: Senior Phase from 8 May 2022. At the time of the interview in March 2025, she had been so acting for approximately two (2) years and ten (10) months. By the time the appointment took effect in September 2025, that period had risen to approximately three (3) years and three (3) months.
    14.2 She duly applied for the post when it was advertised under HRM 20 of 2024. Despite the duration of her acting in the post, she was not initially shortlisted. It was only after the intervention of her shop steward that she was added to the shortlist.
    14.3 She testified that, in terms of clause 8.2 of the procedure manual annexed to HRM 20 of 2024, where a candidate has been acting in a post for a period in excess of twelve (12) months and applies for that post, that candidate is to be shortlisted in addition to the maximum of five candidates ordinarily provided for. The Respondent’s initial omission to shortlist her, on her version, was inconsistent with this clause.
    14.4 Once shortlisted, she was given only four (4) working days’ notice of the interview, whereas in terms of clause 19.1 of the procedure manual candidates are to be afforded five (5) working days’ notice. She testified that this materially prejudiced her preparation and caused her psychological distress on the day of the interview.
    14.5 The post advertised, on the Applicant’s evidence, required teaching experience in the relevant phase. In particular, she referred to clause 4.2.2.1 of the procedure manual, which requires candidates for Foundation, Intermediate and Senior Phase Departmental Head posts to have at least two (2) years’ teaching experience in the relevant phase.
    14.6 She testified that the incumbent had at no point in his career taught in the Senior Phase. She added that even after his appointment in September 2025, the incumbent continued to perform duties in the Intermediate Phase and only began performing duties in the Senior Phase in or about January 2026 – approximately four months after the appointment had taken effect.
    14.7 Notwithstanding her three years and three months of acting service in the very post, and notwithstanding what she contends was the incumbent’s failure to meet the minimum requirements, she was passed over for appointment. The Respondent did not, before, during or after the appointment, furnish her with any written reasons for her non-appointment.
    14.8 The relief which she seeks, in the first instance, is appointment (alternatively protected promotion) to the post of Departmental Head: Senior Phase at Hlelingomuso Primary School. In the alternative, she seeks an order setting aside the appointment of the incumbent and directing the Respondent to re-advertise the post, together with compensation in terms of section 193(4) of the LRA.
15. Neither the First Respondent nor the Second Respondent led any evidence or tendered any submissions. There is therefore no version, factual or legal, that contradicts that of the Applicant.
16. In his closing affidavit, Mr Nyandu submitted that, in matters of this nature, the Applicant’s unopposed evidence is to be accepted as factual and valid. He relied, in particular, on the judgments of the Labour Court in City of Cape Town v SAMWU obo Sylvester, Mngomeni and Another (C1148/2010) and Department of Social Development v NEHAWU obo Maputle and Others (D1461/19) [2025] ZALCD 40 in support of his contention that the Applicant ought to be appointed to the post on a protected basis.

APPLICABLE LEGAL FRAMEWORK

17. Section 186(2)(a) of the LRA defines an unfair labour practice as “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 … or training of an employee or relating to the provision of benefits to an employee”.
18. It is trite that the onus rests on the employee to establish, on a balance of probabilities, that the conduct of the employer was unfair: Apollo Tyres South Africa (Pty) Ltd v CCMA and Others (2013) 34 ILJ 1120 (LAC). The default nature of the present proceedings does not relieve the Applicant of that onus; it does, however, mean that her unrebutted evidence stands to be accepted unless it is inherently improbable or contradicted by the documents themselves.
19. It is equally trite that an employer enjoys a wide managerial prerogative in matters of appointment and promotion, and that an arbitrator will not lightly interfere with the exercise of that prerogative. In Department of Justice v CCMA and Others (2004) 25 ILJ 248 (LAC), the Labour Appeal Court held that interference is justified only where the employer’s decision is shown to be grossly unreasonable, mala fide, based on a wrong principle, or taken in bad faith. The principle was reaffirmed in Arries v CCMA and Others (2006) 27 ILJ 2324 (LC) and Ndlovu v CCMA and Others [2011] 1 BLLR 30 (LC), where it was emphasised that an employee has no entitlement to promotion in the ordinary course – only a right to be given a fair opportunity to compete.
20. Where, however, an employer has bound itself to a particular procedure, whether by way of statute, collective agreement, internal policy or recruitment manual, a material departure from that procedure is capable of rendering the resultant appointment process unfair: see Provincial Administration: Western Cape (Department of Health and Social Services) v Bikwani and Others (2002) 23 ILJ 761 (LC); and Aries (supra). The closer the link between the procedural irregularity and the outcome, the more readily a tribunal will find unfairness.
21. In the matter of City of Cape Town v SAMWU obo Sylvester, Mngomeni and Another (C1148/2010), referred to by the Applicant’s representative, the Labour Court declined to interfere with an arbitrator’s award which had directed the appointment of an applicant who had acted for a lengthy period and had been refused permanent appointment without rational explanation. The Court emphasised that the failure to proffer rational reasons for the non-appointment, in circumstances where the post remained vacant and the applicant had acted for a substantial period, may give rise to an inference of unfairness.
22. More recently, in Department of Social Development v NEHAWU obo Maputle and Others [2025] ZALCD 40, the Labour Court (per Govender AJ) upheld an arbitrator’s award which had directed the protected promotion of an applicant whose lengthy acting service in a Director-level post, coupled with serious procedural and substantive irregularities in the recruitment process, was found to constitute an unfair labour practice. The Court reaffirmed that, in appropriate cases, the remedy of protected promotion is competent and may be granted.
23. The remedies available to a successful applicant in an unfair labour practice dispute are set out in section 193(4) of the LRA, which empowers an arbitrator to determine such relief as is fair, including “ordering the reinstatement, re-employment or compensation”, and includes the power to order protected promotion: see Mashegoane and Another v University of the North (1998) 19 ILJ 1379 (LC). Compensation under section 194(4) is capped at the equivalent of twelve (12) months’ remuneration.

ANALYSIS

24. I commence the analysis by recording that, although both Respondents failed to appear, that fact does not entitle the Applicant to relief automatically. The Applicant remains required to discharge the onus resting on her in terms of section 186(2)(a) read with section 192(2) of the LRA, namely to establish on a balance of probabilities that the conduct of the First Respondent was unfair. The default nature of the proceedings means only that her evidence is unrebutted; it does not relieve me of the obligation to assess that evidence critically and to apply the law to the facts so established. With respect to the submission in paragraph 1 of the Applicant’s closing affidavit – to the effect that unopposed evidence is automatically “factual and valid” – the position is more nuanced: unrebutted evidence is to be accepted unless inherently improbable, but it must still satisfy the legal threshold for the relief sought.
25. I deal first with the procedural complaints, before turning to the substantive complaint and the question of relief.

Failure to shortlist – clause 8.2 of the procedure manual

26. On the Applicant’s unrebutted evidence, the procedure manual annexed to HRM 20 of 2024 provides at clause 8.2 that, where a candidate has been acting in a post for twelve (12) months or more and is an applicant for that post, that candidate is to be shortlisted in addition to the ordinary maximum of five (5) shortlisted candidates.
27. It is common cause on the evidence before me that the Applicant had, by the time of the shortlisting, been acting in the very post for substantially in excess of twelve (12) months – indeed, for approximately two (2) years and ten (10) months. She was, on her version, an automatic candidate for shortlisting in terms of the manual.
28. Notwithstanding this, the Respondent did not initially include her on the shortlist. It was only after the intervention of her shop steward that she was so included. That conduct, on the unrebutted evidence, constituted a clear and material departure from the procedure to which the Respondent had bound itself in HRM 20 of 2024. It is, on the authorities, the kind of departure capable of supporting a finding of procedural unfairness.

Inadequate notice of the interview – clause 19.1

29. On the Applicant’s unrebutted evidence, clause 19.1 of the procedure manual requires that candidates be afforded not less than five (5) working days’ notice of the date of the interview. The Applicant was given only four (4) working days’ notice.
30. While, considered in isolation, a one-day shortfall might be regarded as relatively modest, it is to be remembered that the Applicant was added to the shortlist only after corrective intervention. The reduction of her preparation time by 20% – from five working days to four – must be viewed in that context. It compounded the prejudice flowing from the initial failure to shortlist her at all. I find that this departure too was unfair to the Applicant, and inconsistent with the procedural standard to which the Respondent had committed itself.

Failure to provide reasons for non-appointment

31. It is well established that, while there is no general statutory obligation on an employer to furnish written reasons for a non-appointment, the failure to do so may, in appropriate circumstances, give rise to an inference adverse to the employer. In City of Cape Town v SAMWU obo Sylvester (supra), the failure of the City to provide rational reasons for the pass mark applied and the method of allocating marks formed an important component of the finding of unfairness. The principle is one of evidential inference, not of an entitlement to reasons as such.
32. On the unrebutted evidence before me, the Applicant requested clarity from the Respondent and received none. The Respondent has not, in these proceedings, advanced any reason for its preference of the incumbent over the Applicant. In the absence of any such reason, and given the Applicant’s lengthy acting tenure in the very post, I am entitled to and do draw an adverse inference. The Respondent has not displaced the Applicant’s prima facie case.

Substantive complaint – the incumbent’s minimum requirements

33. The substantive complaint is that the incumbent did not meet the minimum requirements set out in clause 4.2.2.1 of the procedure manual, namely at least two (2) years’ teaching experience in the relevant (Senior) Phase. This is a serious allegation. It goes not merely to procedural fairness, but to the underlying lawfulness of the appointment itself.
34. On the Applicant’s evidence, the incumbent had at no point in his career taught in the Senior Phase. This was supplemented by her further evidence that, even after his appointment in September 2025, he continued to perform duties in the Intermediate Phase and only commenced performing duties in the Senior Phase in January 2026. This conduct – if accepted – is at least consistent with the proposition that he did not have the requisite Senior Phase experience at the time of the appointment.
35. I record, however, that I have not had the benefit of sight of the incumbent’s personal file, his curriculum vitae, his application form or his interview record. The Applicant did not produce documentary corroboration of the assertion that the incumbent had never taught in the Senior Phase. While her evidence in this regard is unrebutted, and while I am required to accept it for the purposes of these proceedings, it is appropriate that the strength of the inference be calibrated to the strength of the underlying evidence.
36. I am nonetheless satisfied that, on the unrebutted evidence as a whole, the Applicant has discharged the onus of establishing, on a balance of probabilities, that the recruitment process which culminated in the incumbent’s appointment was tainted by material procedural irregularities and was, in addition, attended by the failure of the Respondent to provide any reasons for its preference. The cumulative effect of those features is that the conduct of the Respondent was unfair within the contemplation of section 186(2)(a) of the LRA.

APPROPRIATE RELIEF

37. The Applicant’s primary relief is appointment to the post of Departmental Head: Senior Phase at Hlelingomuso Primary School – in effect, an order of protected promotion. In the alternative, she seeks an order setting aside the incumbent’s appointment, the re-advertisement of the post, and compensation in terms of section 193(4) of the LRA.
38. Protected promotion is a competent remedy in unfair labour practice disputes relating to promotion: Mashegoane (supra); Maputle (supra). It is, however, a remedy to be granted with circumspection. It interferes deeply with managerial prerogative; it has direct and significant consequences for the incumbent; and it presupposes that the applicant for that relief has herself satisfied all the requirements of the post. In the present matter, the Second Respondent, Mr Kaba, was joined as a party to these proceedings and was duly served with the notice of set-down. He elected not to participate. He has thus been afforded a full opportunity to be heard, and the considerations that would ordinarily counsel against a final remedy in his absence are accordingly diminished, though not entirely displaced.
39. I have weighed carefully whether, on the evidence before me, the appropriate remedy is protected promotion or whether it is the setting aside of the appointment with re-advertisement of the post. The factors which militate against an order of protected promotion in the present matter are these:
    39.1 I have not been provided with the Applicant’s curriculum vitae, qualifications, or the interview score sheet. While she has on her own evidence acted in the post for over three years, I am unable, on the present record, to make a positive finding that she met all the minimum requirements of the post in their entirety, or that she was the leading candidate amongst those who were properly to be considered;
    39.2 Although the Second Respondent was joined and properly served, he elected not to participate in the proceedings. I am accordingly not in possession of any evidence from him as to his qualifications, his teaching experience, or the basis upon which he came to be appointed in preference to the Applicant. While his election not to participate cannot be permitted to insulate his appointment from scrutiny, it does mean that the record before me as to his suitability is one-sided. In those circumstances, an order substituting the Applicant for him on a final and irrevocable basis is one that I remain disinclined to grant; and
    39.3 The cases of Sylvester and Maputle are distinguishable on their facts, in that the records before the arbitrators in those matters were considerably fuller than the record before me.
40. In my judgment, the appropriate relief on the present facts is to set aside the appointment of the incumbent, to direct the Respondent to re-advertise the post and to follow a fresh and lawful recruitment process strictly in accordance with HRM 20 of 2024 and the procedure manual annexed thereto, and to award the Applicant compensation reflecting both the procedural and substantive unfairness which she has suffered. This relief vindicates the Applicant’s rights, restores the integrity of the recruitment process, and avoids the irretrievable consequences which would attend an order of protected promotion in the absence of a fuller record.
41. As to the quantum of compensation, section 194(4) of the LRA caps compensation in unfair labour practice matters at the equivalent of twelve (12) months’ remuneration. Having regard to (i) the duration of the Applicant’s acting tenure; (ii) the seriousness of the First Respondent’s departures from its own procedure manual; (iii) the First Respondent’s failure to provide any reasons for the non-appointment; (iv) the psychological prejudice testified to by the Applicant; and (v) the election of both Respondents to absent themselves from these proceedings without explanation, balanced against the fact that the Applicant is to continue acting in the post, and on a salary commensurate with the post, pending the conclusion of the re-advertisement, an award of compensation equivalent to three (3) months’ remuneration of the Applicant, calculated at the salary applicable to the post of Departmental Head: Senior Phase, is in my view fair and reasonable.
42. Pending the outcome of the re-advertisement and given that the Applicant has acted in the post since 8 May 2022, it is also fair that she continues to act in the post on the existing terms until such time as a successful candidate is appointed pursuant to the new process and assumes the post.

AWARD

43. In the result, I make the following award:
    43.1 The conduct of the First Respondent, the Department of Education – KwaZulu-Natal, in the recruitment, shortlisting and appointment process pursuant to advert HRM 20 of 2024 in respect of the post of Departmental Head: Senior Phase at Hlelingomuso Primary School, constituted an unfair labour practice as contemplated by section 186(2)(a) of the Labour Relations Act 66 of 1995;
    43.2 The appointment of the Second Respondent, Mr Kaba, to the post of Departmental Head: Senior Phase at Hlelingomuso Primary School pursuant to advert HRM 20 of 2024 is hereby set aside;
    43.3 The First Respondent is directed to re-advertise the post of Departmental Head: Senior Phase at Hlelingomuso Primary School within sixty (60) days of the date of this award, and to conduct the recruitment process strictly in accordance with HRM 20 of 2024 and the procedure manual annexed thereto, including, in particular, clauses 4.2.2.1, 8.2 and 19.1;
    43.4 Pending the conclusion of the re-advertisement and the appointment of a successful candidate, the Applicant, Ms Zukiswa Taleni, shall continue to act in the post of Departmental Head: Senior Phase at Hlelingomuso Primary School on the existing terms;
    43.5 The First Respondent is ordered to pay to the Applicant compensation in the amount of three (3) months’ remuneration calculated at the salary applicable to the post of Departmental Head: Senior Phase, such amount being payable within thirty (30) days of the date of this award.

Brendon Els
(ELRC) Arbitrator