21 April 2026 – ELRC339-25/26EC

ARBITRATION IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KOMANI

Case number: ELRC339-25/26EC

In the matter between

NAPTOSA obo Sandi, Mbuyiseli Christopher Applicant

And

Education Department of Eastern Cape First Respondent

Ntombomzi Damane Second Respondent

Appearances: For the Applicant: Mr. Aaron Mhlontlo (NAPTOSA)
For the First Respondent: Mr. Sandile Nyalambisa: CES: Employee Labour Relations
For the Second Respondent: Mr. Siyabonga Gashi (SADTU)
Arbitrator: Thobela Ncetezo
Heard: 7 October, 11 November, 9 December 2025, 18 March 2026
Delivered: 20 April 2026
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2(a) – Unfair labour practice relating to promotion.

ARBITRATION AWARD
Details of hearing and representation

The applicant was represented by a NAPTOSA official, Mr. Aaron Mhlontlo.
Mr. Sandile Nyalamabisa who is employed as CES: Employee Relations represented the first respondent, Education Department of Eastern Cape. Mr. Siyabonga Gashi, an official of SADTU, represented the second respondent, Miss. Ntombomzi Damane.
The applicant submitted a bundle of documents marked “AB”. The first respondent submitted a bundle of documents marked “RB” and introduced two witnesses. The Second Respondent also testified and submitted a bundle of documents. All witnesses testified under oath. The proceedings were conducted in English and were digitally recorded.
The parties requested an opportunity to submit written closing arguments for consideration, the last of which was received on 25 March 2026.. Issue to be decided
I am required to decide whether the conduct of the first respondent constitutes an unfair labour practice in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (the Act).

Background to the dispute

The Applicant applied for the position of Chief Education Specialist: Employee Relations & Advocacy in the Chris Hani West District, which was advertised on 6 December 2024 on the Eastern Cape Recruitment Portal. He was subsequently shortlisted, invited to attend an interview, and ranked fourth following the interview process.
The incumbent, who is the second respondent in this matter, was appointed and resumed her duties on 1 July 2025. The applicant subsequently challenged the appointment, contending that the selection panel was not properly constituted in that:
• the approval was not obtained from the relevant authority.
• the Chief Educational Specialist: EEA – Employee Relations, Mr. Ngwendu.
• the panellists were never issued with appointment letters.
• the second respondent misrepresented facts and misled the panel. She claimed that she had completed Postgraduate Diploma in 2019 but she was pursuing the programme as of 31 December 2024 to June 2025.
• The second respondent did not possess a qualification in computer studies and it was an inherent requirement.
The applicant further submitted that the process was also flawed in that:
• Sifting was not done in terms of the PAM document
• The successful candidate was never subject to a security clearance in terms of Regulation 67(c) of the Public Service Regulations 2016
The applicant seeks a remedy in the form of a protected promotion status and/or compensation..
The first respondent submitted that an employer has the prerogative to recruit and appoint employees, provided that it adheres to its policies. It was further submitted that the First Respondent complied with the prescribed procedures and that the applicant was not prejudiced, in that he was duly sifted, shortlisted, and interviewed. The applicant was asked the same questions as all other candidates and was ultimately ranked fourth by the interview panel..
The second respondent submitted that she had applied for the position, was sifted, shortlisted, and invited for an interview. She was subsequently appointed, having met the minimum requirements for the role. She disclosed in her curriculum vitae that she had not completed her postgraduate diploma and had also complied with the security clearance and fingerprint requirements.

Survey of evidence and arguments
Applicant’s case

The applicant testified that he has been employed by the first respondent continuously since 1996. He commenced his career as a Post Level 1 Educator and is presently serving as DCES: Employee Relations & Advocacy. Prior to the advertisement of the post in dispute, he acted on numerous occasions as Director: Employee Relations. He also had the added advantage of supervising the entire directorate. The applicant further testified that he meets all the requirements of the position as set out in the advertisement and is currently acting in the capacity of CES: Employee Relations & Advocacy.
The appointment letters of the panellists were signed by Mr. Godlo, who is the District Director for Chris Hani West. However, the individual who purportedly approved the constitution of the panel lacked the requisite authority, as he was neither the Director-General (DG) nor the Head of Department (HoD). Moreover, Mr. Godlo, being a panellist himself, was not empowered to appoint other panellists. This directly contradicts the first respondent’s submission that the appointment letters were issued by the Head Office. Furthermore, the appointment of Mr. Ngwendu, who at the time held the position of CES: Labour Relations, as a panellist, was in contravention of clause B.5.6.2 of the PAM document
He further testified his area of relevance could not be clearly identified, suggesting that the panellists were inconsistent in their assessments and overlooked the essential requirements of the post.
He further testified that the second respondent does not possess some of the qualifications listed in her curriculum vitae. A qualification, such as a completed program, should be supported by a certificate, as evidenced by the Postgraduate Diploma in Labour Law Practice and the corresponding academic transcript of one of the candidates who were interviewed for the post (AB – pages 72–73). In the absence of such documentation, it constitutes a misrepresentation of facts. In the second respondent’s case, the panellists were allegedly misled, and consequently, the recommendation for her appointment was based on incorrect information (AB – pages 52–57). Specifically, her CV inaccurately reflects that she completed the Postgraduate Diploma in Labour Law Practice (AB – page 53).
He further testified that the second respondent acted in the position from 1 May 2024 to 31 October 2024. Her acting appointment had expired by the time the post was advertised, as her Z83 form is dated 2 June 2025. When the advertisement for the post in question (AB – pages 14 to 16) closed in December 2024, the second respondent was no longer serving in an acting capacity.
He further testified that an appointment may only be made once security clearance has been confirmed, in terms of Regulation 57(c) of the Public Service Regulations, 2016 (AB – page 77); however, the recommendation of the second respondent was approved prior to the receipt of the clearance results.
He further stated that he does not recall the first respondent holding a SCG: Employee Relations post in the 2019 organogram. He asserted that she included the post in the organogram to create the impression that she occupied it, thereby misleading the panel. Consequently, the recommendation for her appointment was based on incorrect information..
He further testified that that he met all the requirements of the post and the failure to appoint him constitutes an unfair labour practice and that he had an added advantage in that he is more experienced than what is required in the post, his experience and qualifications. He also has previously acted as a director.
Under cross-examination the witness testified that he is currently employed as DCES: Employee Relations and Advocacy. His duties include managing grievances, disputes, handling dispute referrals, representing the first respondent in arbitration proceedings, assist in the directorate office that deals with discipline and has been delegated to act as a director as an added responsibility.
He stated that the composition of the panel for the position of CES is required to be approved by the HoD. In his case, however, it was approved by the Acting DDG – Corporate Services, Mr. Luthuli, and there was no formal delegation of authority from the HoD.
He also stated that the appointment letter of the chairperson of the panel, Mrs. Fikeni, did not state where the approval to appoint her was obtained. According to the recruitment policy, the approval should come from the HoD and not acting DDG: Corporate Services (AB – page 17).
He further testified that, in terms of PAM, a panellist must hold a post higher than the post being advertised. Accordingly, it was improper for Mr. Luthuli to appoint Mr. Ngwendu as a panellist, as his post was equivalent to the post under dispute.
He further testified that the shortlisting criteria differ from those set out in the advertisement, as they do not require a diploma or degree
He stated that there were 143 applicants and admitted that he was not prejudiced by the panel’s approval, as he was shortlisted for the post. However, he noted that the process was flawed. Although the trade unions did not challenge it, the process could still be contested in court and declared invalid. He further stated that he was rated fourth..
The applicant further stated that one of the panellists, Mr. Ncapayi, appeared to be asleep throughout the proceedings. This did not surprise him, as he observed that Mr. Ncapayi typically behaves in this manner during meetings. The applicant suggested that Mr. Ncapayi either deliberately disengaged because he was uninterested in him as a candidate or habitually slept through such sessions. He noted that Mr. Ncapayi was only alert during introductions and when the chairperson called his name to ask question.
He further stated that the questions which were asked by the panel were not relevant to the requirements of the post and that the appointment of a candidate is supposed to be done after receipt of competency results, vetting and clearance security, an exercise which was not complied with by the first respondent. The recruitment for middle management must include competency test.
Under cross-examination by the second respondent, the Applicant testified that he began acting in April/May 2025. From April 2021 to November 2023, he served as Acting Director: School Administration. He handled labour relations matters even prior to his appointment at the head office and has represented employees in such matters. He further confirmed that he possesses the relevant qualifications, experience, and expertise.
He stated that at the time of the application the second respondent was not a Chief Education Specialist and her appointment letter to act had expired. He admitted that there is no mention of a diploma or degree requirement in the advert.
He further stated that preference for the promotion post was given to employees of the first respondent. He contended that the process lacked genuineness, as reflected in the panel’s rankings: he was placed fourth, whereas the second respondent, who allegedly misled the panel, was ranked first. He argued that the incorrect information she provided, specifically, that she possessed qualifications she did not in fact hold, materially influenced the panel’s scoring and consequently affected his ranking. She further indicated that, at the time she applied for the position in dispute, she was acting as DCES, although her acting appointment had lapsed on 31 October 2024.
He also stated that the appointment letter of the District Director as a panellist and other panellists came from his own office rather than the office of the HoD.
He further stated that PAM provides guidance for interview questions, which must be based on a candidate’s qualifications and experience, for example, testing a candidate on computer skills. He became aware, both during and after the interview, that the questions he was asked were not relevant to the post. On one occasion, he was invited to an interview where he was also required to undergo a competency test.
He requested twelve months compensation and protected promotion.

First respondent’s case

The first witness of the respondent, Mr. Fundile Ngwendu, testified that he is employed as CES: Employee Relations since 2019 at Chris Hani East and was one of the panellists for the post in dispute. The selection and appointment of the panel was done by the Acting DDG: Mr. Q Luthuli.
His appointment to the panel was appropriate because his position is equal to the post in question in terms Clause 1(vii)(1) of the Recruitment Process for Public Service Act Employees and Office Based Educators (RB Page 31) and Clause B.5.6.2 of the Personnel Administrative Measures (PAM document). He further testified that he is not aware of any other policy other than the PAM document, which regulates the constitution of the panel. They referred to the advert for the post in shortlisting the applicants (AB page 14-16).
Before the shortlisting process they developed a criterion based on the advert and they developed questions for the interviews.
The applicant and second respondent were shortlisted because they met the minimum requirements and he was one of the candidates who were interviewed and he was ranked number four in terms of scoring (AB-page 32).
He further testified that the questions which they asked the candidates were relevant to the post as they dealt with their duties. He understood the information in the CV of the second respondent to mean that she was currently studying for a Postgraduate Diploma in Practical Labour Law (AB-page 53 – last column) and that was considered. She also submitted a certificate in computer literacy (RB – page 19).
During the interview NAPTOSA and SADTU were represented to observe and they expressed their satisfaction that the process was free and fair. They also did not interject during the shortlisting. The witness also did not identify any prejudice towards any candidate.
Under cross-examination the witness stated that he did not see any bias towards any candidate.
He further stated that delegations are made in writing, but he does not know who has been delegated the authority to approve appointments. He also indicated that he is unsure how the panel was appointed, as he is not familiar with the delegation of authority. Additionally, he could not explain how he received a letter of appointment, noting that it was issued long before he participated in the shortlisting process. His letter of appointment was signed by the District Director (RB – page 5), and he stated that he would not know whether it was correct for the District Director to sign the appointment letter of the chairperson of the interview panel, given that he himself was a panellist and held a lower position on the panel..
He was not involved in the administrative aspects of the recruitment process; his role was limited to shortlisting and interviewing the candidates. He could not confirm whether the minutes of the shortlisting were handwritten or typed, as his primary focus was on the master list presented to the panel, which contained the information for each candidate.
The panel linked the area of operation with the second respondent’s qualifications and denied that there was bias towards the applicant. He stated that to verify the qualifications of candidates is supposed to be the role of an employer. He further testified that to qualify for the position one must have passed all modules in Practical Labour Law.
He further testified that the other documents requested from the candidates, namely security clearance and vetting certificates, were not received, and he could not explain why they were not submitted. He also admitted that computer literacy was a requirement but stated that he was unsure why the panel had not listed it as such.
He also acknowledged that, although the dates recommending the appointment of the second respondent differ, the content of the recommendations is identical.
The second witness, Mrs. Noluntu Dikeni, testified that she has been employed by the first respondent since 1 May 2025 as Assistant Director: Human Resources Planning and Provision. She stated that the posts in question were advertised in December 2024, and that shortlisting commenced in February 2025. She confirmed that her role was limited to administering the recruitment process. She further testified that both the applicant and the second respondent were shortlisted for the position.
The witness further testified that she compiled the documents addressed to the Acting Deputy Director-General: Corporate Services, requesting approval for the establishment of a Selection Committee (RB – pages 1–3). Although the memorandum was approved, the appointment letters for the panel members were not signed. The District Director therefore had the authority to sign and witness then requested him to sign the appointment letters, as approval for the panel had already been obtained. However, the letters were instead forwarded to his supervisor for signature.
She further testified that she has never seen a recording of the recruitment process as they do not have a digital record. Their notes are handwritten and later on typed.
The sifting was not conducted due to a lack of staff, which she communicated to the chairperson of the interviewing panel when he inquired. The chairperson subsequently consulted the trade unions and instructed that shortlisting should continue, emphasizing that skipping the sifting process should not occur again. No objections were raised by the trade unions..
The trade unions signed a declaration confirming that the process was free and fair. The second respondent was scored the highest, while the applicant ranked fourth. Had the second respondent declined the post, Mr. Mhlontlo, who was ranked second, would have been recommended for the position.
Under cross-examination, the witness could not recall the date of shortlisting. She explained that the discussion of sifting appears in the manual minutes but is not reflected in the AB document on page 27. She further stated that she only became aware that sifting is mandatory during training in November 2025.
The witness confirmed that she downloaded the second respondent’s computer literacy certificate (RB – page 19), which should have been reflected on the master list if uploaded to the e-recruitment system. She explained that some candidates bundle multiple documents together and label them as certificates; the exact number of certificates becomes visible only when the bundle is downloaded.
She was not aware of the subpoena (AB – page 13), and no one approached her regarding the documents requested therein. All enquiries are supposed to be directed to her; however, any enquiries that were made to the District Director were instead handled through his personal assistant, Miss Njani..
She stated that they do keep handwritten minutes and summarise them as thoroughly as possible, as the template they use has limited space and cannot accommodate all discussions.
She admitted that the reference numbers for the post (AB pages 15, 27, and 28) do not match, explaining that this was due to insufficient staff and constituted a typing error.
She confirmed that the delegation of duties must be documented in writing and indicated that she would have provided the written delegation of authority if it had been requested.
She further stated that while the memo AB – page 17-19) approving members of the panel was signed, the letters appointing the panel were not. She informed the DD of this, noting that the DD could not have signed his own appointment letter.
During the shortlisting the panel looked at the Labour Law Certificate. She also stated that when candidates come for interview they bring the reference form or a receipt which is acceptable for verification and this was done to all applicants. The second respondent called to inform her that she had a report from SAPS.
She was not sure if verification was favourable to the applicant and they were told that screening results do not come immediately. SAQA has not yet responded about qualification verification.
At the time Mr. Luthuli who signed the recommendation acted on behalf of HoD. His acting letter is not attached in the bundle but is usually in the core file.

Second respondent’s case

The second respondent, Miss. Ntombomzi Damane, testified that she has a Diploma in teaching, Advanced Certificate in Education, Practical Labour Law, Advanced Management Development Programme and is currently doing Postgraduate Diploma in Practical Labour Law at Nelson Mandela University.
She further testified that she was appointed CES: Curriculum in 2012, acted as Education Development Officer in 2015 to 2017. She joined the Human Resources Development: Labour Relations in 2017 after her acting as EDO expired.
She applied for CES: Labour Relations post which was advertised in October 2024 (AB – page 15). She met the minimum requirements in terms of her CV. The diploma or degree was stated in the advertisement to be an added advantage. She denied that she misrepresented herself with regard to the postgraduate qualification in that she stated on it that she is currently doing a Postgraduate Diploma in Labour Law Practice. She further testified that acting as EDO was not a requirement for the post in dispute.
Under cross-examination she stated that she met the minimum requirements of the post. She has an extra-curricular diploma in Practical Labour Law and is currently doing it at a higher level, viz Postgraduate Diploma in Labour Law. She further stated that the certificate that the applicant is using to compare with hers is not his but his representative, Mr. Mhlontlo and is therefore not a relevant comparison, ad has not heard of a comparison between herself and the applicant.
Under cross-examination by the applicant, the second respondent testified that the dispute involves the applicant, herself, and the first respondent. She clarified that the applicant’s representative’s qualifications were not to be compared with those of the second respondent. She further stated that she was appointed as a Subject Advisor in 2012, after which she acted as a circuit manager. Later, she requested a transfer to the Labour Relations section, having developed an interest in that field and wishing to pursue a career there, following the established transfer process. She also explained that the HRD: Labour Relations Directorate has existed since 2008, but in districts where it is absent, CES employees perform the functions of the directorate and lead the section in the absence of directors..
Her CV (AB, p. 51) was retrieved from the portal, as she had previously uploaded her documents when applying for other positions, prior to applying for the post in question. The CV in the first respondent’s bundle (RB, p. 8) is the version she submitted when attending the interview.
She admitted that, in her current Postgraduate Diploma in Labour Law Practice, she has not yet passed the Conciliation Practice module. She acknowledged that it was a mistake to indicate in her application that she had completed the module, but she corrected this, as reflected in the second column of the record (AB – page 53), which now shows it as “currently doing.” It is possible that, when completing the e-recruitment application, she inadvertently clicked “completed” instead of “in progress,” as she was unfamiliar with the new system at the time. She was informed that she would have the opportunity to correct any such information during the interview. Importantly, this was not the sole information required or relied upon in the decision to appoint her.
.
She further stated that she had made a mistake by not including her computer literacy certificate and other documents in her e-recruitment application. She submitted these, along with the other required documents, when she attended the interview on 25 February 2025 (AB – page 14, line 6).
She admitted that the date on which she obtained the computer literacy certificate is not the same in her CV (AB – page 54) and on the certificate (RB – page 19) and that the correct date is the one on the certificate. She further stated that at the time of applying for the position in dispute she was Senior Education Specialist: Labour Relations.
She submitted her appointment letters to act (AB – page 67-68) as the one she submitted on portal could not be found but it was not accepted by the applicant’s representative. She was appointed to act in writing but she misplaced the letter and the HR office told her that her letter of appointment was given to Head Office for payment. She therefore brought the persal printout. She admitted that Z83, CV and master list are silent on her acting as CES from November 2024 to 30 April 2025.
She submitted the police clearance certificate by e-mailing it to HR personnel.

Closing arguments by the Applicant

The applicant argued that both witnesses of the first respondent were part of the employment meetings, but their evidence is just a mere denial of the facts. The evidence of the two witnesses had notable sharp contradictions, and it must not be accepted. It was further argued that the panel that conducted the employment process was not properly constituted in line with clause B.5.6 of the Revised PAM policy document of 09 September 2022.
It was further argued that poorly drafted and overly cumbersome Recruitment and Selection Policy signed before December 2020 breeds disputes due to its lack of clear direction, using vague terms like “flexible” and “as far as possible”. This ambiguity forces each into subjective interpretation, rendering the policy and its exhaustive steps ineffective. The appointment letters of the panellists, including that of the Panel Chairperson, were signed on 12 February 2025 by the Chris Hani West Education District, Mr Godlo, without any proof of a delegation letter to carry out such a task, as he was also a panellist. His appointment letter was signed by Mr Mpupu M, Chief Director, who has nothing to do with the approval of the establishment of the Interview Committee and/or signing of appointment letters. There’s no proof that he was delegated such authority.
It was further argued that scores reflect an element of bias as both witnesses could not lead a convincing argument related to how the scorers reached the total scores as to why the applicant was scored low, and the second respondent scored high and that the very same five questions asked on page 31 were not relevant to the requirements of the post.
It was further argued that the approval of the appointment was never obtained from the relevant authority, i.e., Head of Department, but instead, it was signed by the Acting DDG, CS, Mr. Q. Luthuli, who portrayed himself as the Head of Department. Analysis of evidence and arguments
The dispute before me was referred in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended. In disputes of unfair labour practice, the principle of “he who alleges must prove” is applicable. The burden of proof is therefore on the applicant to prove that the conduct of the respondent is an unfair labour practice in terms of the above section, which provides that:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving……(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
It was common cause that the applicant, employed as a Deputy Chief Education Specialist, applied for the position of Chief Education Specialist, was shortlisted, invited to an interview, and ultimately ranked fourth. The second respondent was ranked first and was consequently appointed to the position of Chief Education Specialist.
The applicant alleged that the conduct of the first respondent was unfair in failing to appoint him. In considering whether such a failure constitutes an unfair labour practice, it must be determined whether the employee who was not appointed met the minimum requirements for the position, and whether the person who was appointed failed to meet those requirements, thereby rendering them not the best candidate for the job. In this case, the applicant, in challenging his non-appointment, did not provide sufficient evidence to show that the second respondent failed to meet the minimum requirements. The only contention raised was that her computer literacy certificate was not initially included in her application. However, during the arbitration process, a witness for the first respondent testified that they had downloaded the second respondent’s computer literacy certificate from the portal and it was available during interviews and part of the first respondent’s bundle (RB – page 19).
The applicant testified that the second respondent misrepresented her qualifications by stating in her CV that she had completed all modules for the Postgraduate Diploma in Labour Law Practice. It should be noted that it is also indicated in that CV that she is currently still undertaking the program. Be that as it may, according to the advertisement, possession of a qualification in Labour Relations was listed as an added advantage and was not a core requirement for the appointment but an added advantage.
No evidence was submitted by the applicant to demonstrate that he was the best candidate for the position, or that he was superior to the second respondent. Similarly, there was no proof that the second respondent failed to meet the minimum requirements of the job, or that the applicant was prejudiced by the sifting process, which allegedly was not conducted. The applicant’s qualifications were not included in the bundle for comparison with those of the second respondent. Instead, he submitted the qualifications of another candidate to allege that the second respondent had not completed the Postgraduate Diploma in Labour Law Practice. In my view, this does not establish that the applicant was the most suitable candidate. No information was provided to show what made the applicant a better candidate than the second respondent, and therefore, there is insufficient basis to conclude that the first respondent’s conduct constituted an unfair labour practice.
It is the prerogative of an employer to appoint the candidate they consider most suitable for a position. Any individual who wishes to challenge the employer’s decision bears the onus, on a balance of probabilities, of demonstrating that the decision was unfair and that they were the most qualified candidate among all applicants.
The applicant has failed to provide compelling evidence to establish that he was the most suitable candidate for the position in question. His own testimony proves that he was ranked fourth among the candidates interviewed. In the circumstances, it would be unreasonable to grant either compensation or a protected promotion to a candidate who, based on objective evaluation criteria, ranked below two other applicants who achieved superior interview scores. It is well established that in determining entitlement to promotion or any remedial relief, an applicant must be assessed not solely in comparison with the incumbent, but against all other candidates who applied for the position. This is supported in National Commissioner of the SA Police Service v Safety & Security Bargaining Council & Others (2005) 26 ILJ 903 (LC). Consequently, the Applicant’s allegation that the decision of the first respondent not to appoint him constitutes an unfair labour practice is not convincing.
The evidence relied upon by the applicant, namely that the incumbent failed to submit a computer literacy certificate, was rebutted by the witness, who testified that the certificate was indeed made available on the day of the interview, having been downloaded from the relevant portal..
Furthermore, the arguments that the incumbent was no longer acting at the time that she applied for the job is irrelevant as that is not a requirement for appointment into this position, even though the second respondent did provide evidence that she was paid acting (second respondent’s bundle). The applicant also submitted proof that he acted as Chief Education Specialist and Director: Employee Relations and Advocacy (AB – Annex C page 3). Be that as it may, acting to qualify for appointment is not a requirement.
There was no proof that the second respondent does not possess the knowledge and skills to be appointed into that position and that the applicant qualified more than her and was more deserving of the appointment than the second respondent. There are two other candidates between the applicant and second respondent, whom the former has not made any mention of being a better candidate than them. I believe that if the respondent was found to have acted unfairly, it would have been reasonable to place the candidate who was ranked second and not a candidate who was ranked fourth. An employer has a sole discretion and prerogative to appoint a person who it considers to be the best candidate.
The applicant also testified that the second respondent did not submit a police clearance certificate as required. The permission for her fingerprints to be taken is dated 20 February 2025. I believe that the question in this instance is whether it was grossly unreasonable of the first respondent to not appoint the applicant but the second respondent on the grounds that the latter did not submit the police security certificate? I am of the view that this is not a ground that entitles the applicant to allege the conduct of the first respondent is an unfair labour practice. In PAWC (Department of Health & Social Services) v Bikwani and others (2002) 23 ILJ 761 (LC), The court held that even if an employer’s assessment and appointment decision in a promotion process may be incorrect, courts should not readily interfere. A court will only intervene where there is unambiguous evidence of gross unreasonableness suggesting bad faith (mala fides) or a failure to properly apply the mind. A judicial interference is limited to situations where the decision was, arbitrary or capricious, made in bad faith, based on improper purposes, influenced by rigid or irrelevant principles, or affected by a material error of fact or a misunderstanding of the discretion. In essence, courts do not assess correctness, but only whether the discretion was exercised lawfully and reasonably.
The applicant, in my view, failed to provide satisfactory evidence to prove that he was a better candidate for the position than the incumbent or the candidates ranked second and third. In the circumstances, I believe that it would be unreasonable to interfere with the decision of the first respondent. The applicant has not, in my view, discharged the onus of proving, on a balance of probabilities, that he was the best candidate for the position.
Accordingly, the conduct of the first respondent does not, in my view, amount to an unfair labour practice as contemplated in section 186(2)(a) of the Act.
I accordingly make the following award;