20 May 2026 – ELRC981– 25-26EC

CASE: ELRC 981– 25-26 EC.
PANELIST: LMB Matiwane
DATE: 19 May 2026.

In the MATTER between:

Siphokazi M Dambuza
(Union / Applicant)
And
Department of Education Eastern Cape

ARBITRATION AWARD

BACKGROUND

This is a matter referred in terms of Section 186(2) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA).
The matter first came before me on the 24th February and later on the 29th April 2026 for arbitration proceedings. At the preliminary stage the Applicant submitted objections for the proceedings in the absence of key information which was not yet provided by the Respondent including the holding of a pre-arbitration conference. The pre-arbitration conference and its minute was finally held on the 26th February 2026.
In terms of item 10 of the pre-arbitration minute, the documents requested by the Applicant were reported to be no longer available due to passage of time and electricity problems at the Respondent’s office. I made a ruling that the referral be properly signed by the Applicant after being satisfied that it was an application made in time. ISSUE TO BE DECIDED.
I am required to determine whether or not the alleged Respondent’s conduct against the
Applicant, constituted an unfair labour practice. If proven to be unfair, to determine an
appropriate remedy in terms of section 193 of the LRA. PARTIES EVIDENCE AND ARGUMENT.

Applicant’s version.

The Applicant is a former resigned educator in the Department. Before her resignation the Applicant had taught English and isi-Xhosa since 2009 and had taught and worked in East London although her home is based in Gqeberha. In about 2017 Applicant had divorce and a family bereavement which forced her ultimately, resign as an educator. The resignation followed a request for an unsuccessful transfer to Gqeberha which was turned down by the Respondent.
The Applicant now holds an SGB post at Kwa-Zakhele high in Gqeberha. In about August /September 2025, the school principal Mrs Nzweni told the Applicant that due to her resignation, the Applicant could not apply for vacancies in the Department. In about March, two posts were advertised one for History and English and another for English and isi-Xhosa were published in Facebook. The Applicant applied for the second post but was not shortlisted.
Later promotional posts were advertised for Head and the other for Deputy principal, because the Applicant was earlier told that she could not be allowed back into the system due to her earlier resignation, the Applicant did not submit applications. She had referred her dispute to the site committee, the EDO and ultimately to the Department without success. The Applicant then filed this dispute with the Council as a section 186(2) dispute and she prayed for reinstatement if successful.
In cross examination the Applicant confirmed that she was currently a substitute educator employed by the SGB. It is her testimony that although there were six posts she was not shortlisted. She understood that this was consistent with being told by the principal that but for her resignation she could not be allowed back as an educator. Respondent’s version.
1st witness; Mrs Nzweni.
The witness is the principal at Kwa-Zakhele High. During the period in dispute three posts were vacant for English and isi-Xhosa, History and English.
The SGB selected and shortlisted the applicants for the interviews. The post was subsequently filled by someone else. In the second post, an acting applicant was absorbed without interviews following a directive from the Department to do so if the vacant post was a level one post.
In regard to the a third post, i.e. English and isi-Xhosa, an advertised post, applicants were shortlisted and others invited to the interviews. There was disturbance from staff members on the day of interviews because the Applicant was not short listed. The interviews were abandoned. The Applicant was excluded due to her not meeting requirements for the post of English and isi-Xhosa.
The witness denies telling the Applicant that she could no longer apply for an educator post with the Department. The witness testified that in fact she was informed at the Department that it was not easy to re-employ a resigned educator for level-one posts. She conveyed this explanation to the Applicant.
Subsequent to the interview disruptions, the EDO advised that the post was going to be re-advertised but the school was allowed to engage a temporary educator. During this time, the Applicant was on a temporary post level 2. It is this disrupted post that was later converted to permanent by a directive from the Department but the Applicants’ post could not be converted because it was a promotional post.
The witness testified that she denies ever trying to remove the Applicant from the school and stated that she had good working relationship with the Applicant.
In cross examination the witness confirmed that if the Applicant was offered the post at the school, she would have employed her. She accepts that she informed the Applicant that HR states that it was difficult to re-employ her due to her resignation. She confirmed that the Applicant had a red written letter from HR advising her about her status as a resigned person.
The witness could not attest to the contents of the Guideline and was not familiar with the contents of the said Guideline but knew that it existed. Witness testimony is that she was not provided with a written document to explain to the Applicant but an oral information from HR. She confirms that the isi-Xhosa and English posts were advertised on social media.
The witness testified that she was not part of the interview panel and thus could not be expected to account for the exclusion of the Applicant despite her 10 years’ experience. According to her it was the Applicant’s duty to make enquiries about the reason for her exclusion. At first the witness stated that she did not know why the Applicant was not shortlisted but later explains that from her recollections, the Applicant was excluded due to the fact that her application form was not completed in full.
The Department was of the view that because Applicant was holding a promotional post, she could not be absorbed for the level-one post.

2nd Witness testimony; Mouton. K

The witness is a senior practitioner at recruitment in the HR department of the Respondent. She was familiar with the Guidelines for the re-appointment of teachers resigning and re-entering the System (The Guidelines) issue on the 8th December 2014 read together with Collective Agreement No 2 of 2024 of the Education Labour Relations Council.
In terms of the Guidelines, any educator who had resigned from the Department could have entry in the system provided that a basic criterion is met. This criteria places emphasis on rare skills in the data and where the post is not from scarce skills an Applicant can still access employment provided that the people with scarce skills are not at issue and provided further that there are no other Applicants except the resigned.
Where a former resigned Applicant is finally considered as stated above, a recommendation should be made to the Head of the Department and that the process was long and could take as long as three months.
Consequently, as a rule the level one posts are filled by new entrants or educators who did not resign. The History English and isiXhosa taught by the Applicant are not subjects in the scare skills list.
An Applicant could apply for promotional posts regardless of the restriction applicable to posts at level-one if such a post is advertised in the Bulletin.

PARTIES CLOSING STATEMENTS.

The Applicant’s submission in summary is as follows:

It was common cause that the Applicant was employed as a permanent educator in the East London district at Ebenezer Majombosi High up to 2017 when he resigned due to personal reasons known to the Respondent and after her unsuccessful request for a transfer to Port Elizabeth. The Applicant has not been able regain access to the system since her resignation.
The Applicant is now engaged as an educator by SGB at Kwa-Zakhele High in Port Elizabeth and currently receives a nominal salary from the school. The Applicant was a temporary educator of the Respondent at the time of filling this dispute.
It is common cause that in terms of a pre-arbitration minute submitted to the arbitration, the Applicant asked and could not gain access to documents relevant to the dispute due to the Respondent not having electricity. Further it is common cause that at the time of the pre-arbitration minute the Respondent had about 86 unfilled vacant posts but had only published 23 in the bulletin and 63 other posts are inexplicably not yet published and the unpublished posts included the school’s vacant level one post for isi-Xhosa and English.
The Applicant submits that had these posts been duly advertised, the Applicant would have been entitled to apply and be considered for the post, provided she had furnished sound reasons for re-entering the system, as per the Guidelines.
The Applicant submits that to the extent that the principal may have informed the Applicant that she was precluded from applying for permanent posts because of the resignation, the principal would not have acted consistent with the prescribed legal precepts.
It is also common cause that the principal did not place Applicant against the level one vacant post, but against a promotion post when this is considered with her resignation, this meant that the Applicant was ineligible to be converted to a permanent status in terms of the Collective Agreement 2 of 2024.
In the light of the aforesaid, the Applicants efforts to re-entry into the system had been thwarted by the Department’s conduct in barring her re-entry and this was exacerbated by the failure to publish bulletins featuring vacant posts. In consequence to the principal’s information of Applicant’s preclusion from re-entry, the Applicant did not apply for the vacant English and isi-Xhosa post at the school despite her eligibility. The post was later occupied by someone else.
The Applicant submits that the choice to advertise the posts on social media was in breach of the legal prescripts set out in the PAM and risked exposing the personnel employed via that medium open to review in terms of Promotion of Justice Act (PAJA.). While this option was open to the Applicant, it chose a lesser invasive form i.e., seeking a remedy via Council Dispute resolution.
In conclusion, the Applicant submits that the evidence of the Respondent’s first witness should be rejected as unreliable or improbable. A desperate person seeking to re-enter the system would not fabricate a false accusation about her preclusion to the extent of failing to apply for the posts advertised unless for concrete reasons. It is for this reason that the arbitration is requested to the witness’s denials in favour of the Applicant’s version.
Regarding an appropriate relief sought, the Applicant concedes that it would be unreasonable to seek reinstatement in the post occupied by the other employee after reabsorption. Instead, and in consideration that the Applicant should have been absorbed as a permanent employee after 31 December 2025 in terms of clause 4 of the ELRC Collective Agreement 2 of 2024 on completion of her second three-month term of temporary teaching. In the light of the unreasonability of ordering the absorption after the fact, the Applicant calls for compensation equivalent to the lost remuneration.

The Respondent’s submission is summarised as follows:

It submits that Applicant’s cause of action arose on the 13 November 2025 but in the same breath relies on events inter alia that took place in December 2017.
It was the principal’s duty to advise the Applicant that because the Applicant was a resigned educator, she might not be able to apply for level 1 vacant posts.
The Respondent further submits that apart from the fact that the Applicant’s prayer in the referral is for reinstatement, this was not available to a person who had resigned since resignation terminates the employment relationship to the extent that it also precludes the jurisdiction of the Council to hear this case. Reinstatement was a remedy available to a dismissed employee, the Applicant had not been dismissed. The Applicant had no right to be re-admitted or reinstated back to the system.
The Respondent justifies the placement of the Applicant for two fixed terms contracts against promotional vacant posts because she stood no chance of absorption if she were kept in level 1 posts at the time of her dispute.
During the shortlisting and interview for the post later offered to Mbewana, the Applicant was sifted out due to the fact that the post was for isi-Xhosa and English and Applicant did not have qualifications to teach English.
The responsibility to apply for a post rests with the Applicant and where she fails to apply the consequences should be borne by the Applicant.
Respondent prays for the dismissal of Applicant’s case for lack of substance or at worst for lack of jurisdiction by the Council to hear the matter.

ANALYSIS AND ARGUMENTS

The first question is whether this dispute is about promotion within the scope of section 186(2)(a) of the LRA. As I understand it the Applicant’s dispute in this case turns on the allegation that:
i) The school principal and by extension, the Respondent informed her that in terms of Respondent rule contained in the Personnel Administration Measures herein after referred to as PAM, Collective Agreement No 2 of 2024 and the 2014 Guidelines regulating resigned, employees who had resigned were not to be allowed back at the same level into the system.
ii) The Applicant was placed on temporary employment for two consecutive contracts against a promotional post instead of level one posts and this precluded her from being a beneficiary of the absorption to permanent post.
The Applicant’s current employment status is temporary, as such this employment status is lower and has less benefits compared to a full time employed educator. Disallowance of entry into the system, denies the Applicant the right to be considered for promotion/employment or a career, job security and in the result such denial if proven places the Applicant’s dispute within the scope of section 186(2)(a).
The Respondent first argues that the Applicant had resigned and as such there was no employer employee relationship and the Council lacked jurisdiction to hear the matter.
It is common cause that at the time of the filing of this dispute in December 2025, the Applicant was a temporary employee for at least two fixed terms contracts. She was therefore an employee of the Respondent and Council has the jurisdiction to hear the matter.
I now wish to deal with the error of fact in the Respondent’s argument regarding the reason for sifting out of the Applicant in the process of filling the level one post filled by Mbewana.
During the Respondent’s first witness testimony, witness (the principal) testified that she was not part of the shortlisting and interview panel but was a resource person. She testified that according to her recollection, the Applicant was not shortlisted due to an incomplete application form. This means, it is incorrect to argue that she was sifted out due to a lack of English in her qualification as an educator.
In deciding whether a dispute involves a promotion one has to compare the employee’s current job or post applied for to determine whether promotion is involved. Some of the factors that should be taken into account are –
a) differences in renumeration levels.
b) Differences in fringe benefits
c) Differences in status;
d) Differences in levels of responsibilities
e) Differences in levels of authority and power
f) Differences in the levels of job security.
With regards to fairness or otherwise of Applicant’s application being excluded but for the fact that her application form was incompletely filled. This contention was not firmly confirmed by the Respondent but regardless of this fact, it is the prerogative of the selection committee to set rules for the exclusion of applications that are defective as long these rules are rationally justified. It is my view that a criterion set to exclude incomplete application forms is rationally justifiable.
In the case of City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC) It was held, that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following;
a) whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer or
b) whether the employer’s decision was arbitrary, or capricious or unfair or
c) whether the employer failed to apply its mind to the promotion of the employee or
d) whether the employer’s decision not to promote was motivated by bad faith
e) whether the employer decision not to promote was discriminatory
f) whether there were insubstantial reasons for the employer’s decision not to promote
g) whether the employer’s decision not to promote was based upon a wrong principle or
h) whether employer’s decision not to promote was taken in a biased manner.
The school principal denies the allegation as claimed by the Applicant. She testifies that she did not know the detail of the Guideline but communicated that the Department informed her that it was difficult for a resigned educator to be employed at level one posts. The witness was vague in her denial during her cross examination. As it were, she puts the Applicant to the proof on a balance of probabilities.
I find that, in terms of the prescripts, the principal had an active role to recommend in circumstances similar to the Applicant’s. This was particularly so following the Applicants exclusion and the subsequent commotion during interviews. To insist on written proof to be produced by the Applicant is disingenuous when the Respondent itself failed to provide the record of the interviews for this hearing despite consistent requests as reflected in the pre-arb minute. In the absence of better evidence to the contrary, I conclude that the Respondent is the author of its own misfortunes. The Respondent could not insist on documentary proof when it has a case to defend whereas it refused these documents at the request of the other party.
In Noonan v SSSBC and others [2012] 33 ILJ 2597(LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice… and concludes by stating as follows: As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
Although in the evidence before me, the Respondent did not follow the prescripts outlined in the Guidelines, and the PAM and the Respondent opted to use social media instead of the Bulletin to advertise the level -1 posts. This practice was inconsistent with PAM Guidelines. In regard to the directive/ resolution to fill the posts occupied by temporary staff for level I posts, the advertisement was superfluous because, the order was to the effect that the temporary staff holding the posts, were automatically absorbed. I do not find that the defect in advertisement to have constituted any unfairness in this specific instance
Nevertheless, advertisement for the level-1 posts inconsistent with the prescripts may deny prospective applicants like the Applicant fair chance to apply. Otherwise improperly advertised vacant posts may constitute unfairness justifying an interference with the decision to appoint.
The Applicant submits a proposition in its closing argument that for the fact that the Applicant was placed during her temporary employment against a promotion post, the Respondent’s conduct caused the Applicant to be disadvantaged in that she missed the automatic absorption for level one post because she was purposely misplaced.
In her testimony the Applicant did not lead evidence during the hearing stating how she ended up as a temporary educator in a promotional post instead of a level one post in the school. There is no evidence that Applicant objected to her placement in promotional posts during this period. If this were so and Applicant was ignored, then I could be justified in drawing an adverse inference as to the conduct of the Respondent. In the absence of evidential substantion I do not find the Respondent to be responsible for the placement of Applicant in a promotional post at the school.
I now turn to consider whether the Respondent informed the Applicant that she was barred from re-entry into the Respondent system as an educator at post level level-one.
It is common cause that the principal informed the Applicant about the policy regarding re-entry for educators who had resigned. There is a conflict as to the exact nature of the information conveyed by the Respondent to the Applicant.
The principal testified that she was not fully knowledgeable about the content of the policy. She then visited the district office for further insight and was informed that it was difficult to be employed if an applicant was a former educator who had resigned. The Applicant testifies that she was informed by the Respondent (Principal) that she would not be allowed re-entry purely because of her resignation as an educator. Now I have to weigh the most probable version based on a preponderance of probabilities, and do so in the absence of documentary proof in support or in denial.
Following the information from the principal regarding re-entry of a resigned educator, Applicant decided not to apply anymore until clarity is gained, she filed a dispute.
It is my view that the principal in the quest to assist the Applicant conveyed the information as she perceived it from HR, that the Applicant was not likely to be granted re-employment and did not consider the options available to her and the SGB in terms of the prescripts to submit a recommendation.
To the principal’s mind the Applicant was not going to be allowed re-entry at the level one post. Upon receipt of this information, the Applicant formed the view not to apply any further but resolved to challenge the Respondent’s position. I find it difficult to believe that the Applicant fabricated a story to implicate the Respondent for unfair conduct.
Her version that she referred the dispute to the internal site committee and the EDO, without success suggests her ultimate lack of faith for intervention from the district office and it solidified the information received from the principal that she would not be granted re-entry to level -1. In terms of the prescripts the Respondent had a responsibility to inform applicants on the reasons for their exclusion.
The Respondent’s testimony in the other hand is supported by a second witness who restated the policy as she knows it. This second testimony does not assist me in deciding who to believe. Her testimony was not in support or corroboration on how the principal conveyed the message to the Applicant. The Respondent’s argument in the closing statement is that it was proper to place the Applicant in promotional vacant posts … because she stood no chance of absorption if she were kept in level 1 posts at the time of her dispute, this decision is reserved for the Head of the Department and not for officials at a district. To me this suggests that the district’s stance in general was a hard position biased against re-entry. Surprisingly this position is inconsistent with the prescripts. The prescripts state, that provided good cause is shown, the principal with the SGB having followed a specific criterion may recommend the employment of formerly resigned educator. This is the context which informs how the principal conveyed her message to the Applicant.
In the result, I conclude that the Applicant’s version is the more probable and reasonable one. I find that the Respondent informed the Applicant that she was precluded entry to a level one educator post due to her earlier resignation. The Respondent’s conduct of informing the Applicant that she was barred from re-entry to employment as an Educator in the Department constituted an unfair labour practice in terms of section 186(2)(a).
In this case the most appropriate relief is compensation equal to 5 months of lost salary of post level 1, at notch 6 of the educator.

AWARD
I make the following award:

The Respondent’s conduct as outlined in this case constituted an unfair labour practice in terms of section 186(2)(a) of the LRA.
The Applicant has a right to apply for any future posts in the Department regardless of the record of resignation and such application must be processed in terms of the relevant prescripts of education law.
I make no order for costs.
The Respondent is ordered to pay the Applicant 5 month’s level-1 notch 6 of an educator’s salary as compensation.
This amount must be paid into the Applicant’s bank account no later than the 30 June 2026.

Signature: