21 April 2026 – ELRC870-24/25EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL

ARBITRATION
AWARD

Case Number: ELRC870-24/25EC
Date: 20 April 2026

In the matter between

John Kennedy Mkonzi Miya Applicant

and

Eastern Cape Department of Education First Respondent

Yonela Lubelo Second Respondent

DETAILS OF HEARING AND REPRESENTATION

This arbitration was held at Dr W.B. Rubusane District Offices in Mdantsane on 25 April 2025, 29 July 2025, 22 January 2026 and 24 March 2026.
Mr John Kennedy Mkonzi Miya (applicant) was in attendance in all the sessions and was represented by a SADTU official, Mr Lindile Tapa. The Eastern Cape Department of Education (1st respondent) was represented by its employee relations manager, Mr Toto Tsheko. The incumbent to the challenged position, Ms Yonela Lubelo (2nd respondent) was represented by a SADTU official, Ms Cordelia Roji in the first session and later by Mr Qamangwana, in sessions held on 28 November 2025 and 29 January 2026. There are sessions where the 2nd respondent was not represented by a union official, which is the one held on 29 September 2025 where postponement application was refused. In the last session (24 March 2026) the 2nd respondent was represented by Ms Miselwa Mhlakotshana, who is also a SADTU official.
The dispute is about unfair labour practice related to promotion, in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA). The applicant is alleging that the 1st respondent committed unfair labour practice when it overturned the panel’s recommendation that he be promoted and appointed in the departmental head post of Ebenezer Majombozi High School and appointed the 2nd respondent who was ranked number 2 by the panel.
The proceedings were digitally recorded.
On the last day of the arbitration hearing parties agreed to submit written closing arguments and they both submitted in line with the agreed submission time frame, which was 31 March 2026. I have taken these heads of argument into consideration in penning this award
ISSUE TO BE DECIDED
I am required to determine whether unfair labour practice relating to promotion was committed when the 1st respondent overturned the panel’s recommendation that he be promoted and appointed in the departmental head post of Ebenezer Majombozi High School and appointed the second ranked 2nd respondent. If unfair labour practice is proven I will issue appropriate relief.
BACKGROUND TO THE ISSUE
This is a promotion dispute involving a departmental head post at Ebenezer Majombozi High School (a school in Buffalo City Metro District) which was advertised in Open Bulletin for Deputy Principals and Departmental Heads volume 2 of 2024. The position appears as post number 59 in the Bulletin and is a post level 2 position with gross commencing salary of R412 551.00 per annum.
The dispute arose on 18 October 2024, which is when the incumbent’s appointment to the position took effect.
The basis of the applicant’s unfair labour practice claim is that after having been shortlisted and attended interviews he was ranked by the interview panel as the best candidate and recommended for promotion. He was then unfairly substituted by the appointing authority, and the second best candidate got to be appointed.
The relief sought by the applicant is to be appointed to the departmental head position as was recommended by the interview panel.
The 1st respondent disputed that an unfair labour practice was committed. Its case is that a person who met all the requirements, who was the most suitably qualified, is the 2nd respondent.
SURVEY OF THE EVIDENCE AND ARGUMENTS
Common cause
It is common cause that the post requirements for the departmental head position as reflected in the advert are Tourism and Life Orientation learning areas for grades 8 to 12 (page 15 of main bundle A).
At the time of applying for the position the applicant was a post level 1 educator at Ebenezer Majombozi High School, where the contested position was, and had 29 years’ experience. He held the following post matric qualifications: Bachelor of Pedagogies (Afrikaans and Psychology), and among others he has Certificates in Tourism and Hospitality Short Course from IQ Academy obtained in 2021, Guidance for Leaners Certificate in Life Orientation issued by Ikamva Lethu obtained in 2021. He also has a certificate of attendance of Educators’ Seminar aimed at Improving the Quality and Capability of Tourism educators, attended in 2015. His gross salary is R41 489.25 per month (R497 871.00 per annum)
The 2nd respondent was a post level 1 educator at Ebenezer Majombozi High School when she applied for the Departmental Head post. She had 5 years’ experience and her post matric qualification is Bachelor Education- Tourism and Consumer Studies.
APPLICANT’S CASE
Applicant
The applicant testified that he started teaching at Ebenezer Majombozi in 2017 and was assigned the newly introduced subject of Tourism. He managed 100% even though he had worked under challenging circumstances with less resources.
An educator fresh from university (the 2nd respondent) arrived and got to be mentored by the applicant in Tourism. She got to be appointed in the position even though she had been scored as second candidate. He was told that she got to be preferred because she was qualified for both Tourism and Life Orientation.
His qualifications, in addition to his Bachelor of Pedagogies, are short courses in Tourism and Life Orientation. He started to serve as an educator in 1995 at Nonceba High School in Zwelitsha. There he taught Afrikaans, English, Life Orientation, Tourism and Creative Arts in grades 8 to 12. Mid 2017 the applicant moved to Ebenezer Majomozi. From 2018 he took over Tourism Department and taught grade 10 and 11. In 2018 he taught Life Orientation in grade 10. In 2019 he taught Tourism from grades 10 to 12.
The 2nd respondent arrived in 2020, after she had taught in KwaZulu-Natal for one year after university. He got to mentor the 2nd respondent as she was new in teaching Tourism. She got to teach Tourism in grade 11, and Social Science in other grades.
On 18 October 2024 he got to learn that he was not appointed in the post, when the school’s principal made the announcement. The applicant was aggrieved by the announcement as he knew himself to be the most eligible candidate by qualifications and experience.
The applicant referred to 14 August 2024 interview minutes where he was held to have rendered a good performance and had displayed knowledge of the subject. He was scored as the top performing candidate with total score of 70, while the 2nd respondent was scored 63.
The applicant is seeking to be appointed to the position retrospectively to 18 October 2024.
On cross examination the applicant conceded that in his Bachelor of Pedagogies qualification (B-Ped) he majored in Afrikaans and Psychology. He never did Tourism and Life Orientation in B-Ped). He conceded to not having done management formal qualification. He instead has short courses in Tourism and management. The 2nd respondent, on the other hand, has Bachelor of Education (B-Ed) in Consumer Studies. He further conceded that the 2nd respondent, in her B-Ed, has school management as one of the courses. The applicant has certificates in Tourism and Life Orientation, which were funded by the 1st respondent. His experience in teaching the subjects and the inhouse training made him to qualify for consideration. In his B-Ped he majored in Psychology, which is relevant to Life Orientation.
The applicant testified further that the incumbent had been looking for an office to work in as departmental head even before the announcement of who was promoted.
He further conceded that he was recommended together with the 2nd respondent. He takes issue with the fact that there is no explanation he had had sight of as to why he was not promoted as top performing candidate. He maintained that he believes that his principal influenced Mr Mabece to change SGB recommendations.
The 2nd respondent taught Tourism for 4 years in grades 11 to 12 and never taught Life Orientation. The applicant, on the other hand, taught Tourism from 2018 and had good marks. He also taught Life Orientation, and this subject is related to Psychology, which he has in his B-Ped. He has more than 10 years teaching in both learning areas, while the incumbent had only 4 years teaching experience in Tourism only in grades 11 and 12. She never taught Life Orientation.
Coll Agreement of 2024, effective from March 2025. This subordinate legislation cannot operate in the case at hand because the processes leading to the challenged promotion occurred before it became operational. This is so because it is a general rule, in interpretation of statutes, that legislation is not to operate retrospectively unless it is expressed to operate retrospectively. In Solidarity obo Members v Automobile Manufactures and Others the LAC remarked as follows on this issue:
‘[36] There is no express statutory prohibition on the retrospective operation of collective agreements. However, it is generally presumed that the law maker does not intend statutory instruments to be retrospective in their operation. The presumption is of course rebuttable, expressly or by necessary implication, even where the instrument impacts negatively on vested or existing rights’
In Collective Agreement of 2024 there is no such express provision that the agreement is to operate retrospectively, nor is retrospective application implied in its provisions. The Collective Agreement operational before March 2025 is the one to be relied on with regards to the challenged position.
Ms Thembela Mbovane
Ms Thembela Mbovane testified that she is the applicant’s colleague and she had also applied for a departmental head position in the same bulletin, but in Mathematics stream. She recalls the conflict on the said posts started at profiling which ended up being corrected. She was part of the interview panel.
About the applicant not being promoted, she recalls that it was announced by the school principal in front of the staff. She could not believe that the applicant, who had been the best candidate, was not appointed. She believes that correspondence should have been sent to the applicant explaining the reasons for his non-appointment. The decision was surprising as the applicant had mentored the incumbent, who had just 4 years’ experience.
Mr Luka Mdokwana
Ms Lumka Mdokwana testified that he is a teacher component SGB member, and was an interview panel member for the departmental head post the 2nd respondent got appointed to. He recalls that the learning areas for the post were Tourism and Life Orientation for grades 8 to 12. When the applicant arrived in 2018 he taught Tourism in grades 10 to 12.
He testified that, according to him both candidates met the criteria to be shortlisted. With the experience he had the applicant stood a better chance from the onset. He then excelled above all candidates in interviews. They recommended that the applicant be promoted to the position, and got surprised when he learnt that the 2nd respondent, the least experienced, having been ranked below the applicant, got to be promoted.
The witness further testified that he, together with other panelists, were so puzzled when their recommendation was deviated from without even informing them about the deviation and reasons thereof. He is wondering as to which criteria got to be used in opting for the 2nd respondent.
1ST RESPONDENT’S CASE
Ms Namso Ncwana
Ms Namso Ncwana (respondent’s Deputy Director- Human Resources and Planning) testified that she is based at BCM District office and leads the human resources section in the district. Amongst her responsibilities is dealing with recruitment processes.
When dealing with promotional posts she would receive from the school a pack with the advert setting out requirements of the post, shortlisting minutes by the panel (authenticated), then interview minutes and ratification wherein there will be recommendations of three candidates in order of preference.
With regards to the post under contest, she recalls that the applicant was number one preferred candidate, followed by the 2nd respondent. The District Director (exercising the delegated powers from the HoD), in line with clause 5.3 of PAM Document, opted for the 2nd respondent as she possessed the requisite qualification. The applicant’s appointment was not endorsed because he did not possess required formal qualification. He only had informal certificates in short programs.
When asked on whether consideration was made of the fact that the 2nd respondent never taught LO in grades 8 to 12 but only taught Tourism in grades 11 and 12, her answer was that experience was not considered. What was considered was that the 2nd respondent has a formal qualification in Tourism.
On whether the applicant was eligible to be shortlisted, her answer was that he was eligible. He had LO teaching experience, and that made him to be eligible to be shortlisted. The 2nd respondent had Tourism qualification and experience in teaching it.
In some of cross examination questions the applicant’s representative referred the witness to the Eastern Cape Chamber Collective Agreement which was solemnized and signed by parties on 09 December 2024 (and ratified by the ELRC’s General Secretary on 19 March 2025, in terms of its clause 7.1 it came into effect on the date it was ratified (which is 19 March 2025). The EC Agreement was not operational when the processes of recruitment and final appointment were made. The processes happened in 2024 and the incumbent got to be appointed in 2024. There is no clause in the agreement talking about its retrospective application. In Solidarity obo Members v Automobile Manufacturers (AMEO) and Others the LAC held that in terms of section 23(2) of the LRA a collective agreement binds the parties for the whole period of the whole period of its operation. The LAC went further to say that there is a rebuttable presumption that lawmakers (parties in the collective agreement) do not intend statutory instruments to be retrospective in their operation. This presumption is rebuttable where it is shown that parties expressly or by necessary implications intended that the collective agreement apply retrospectively. In the EC Agreement there is no such express provision and there are no implications that can be derived from the instrument suggesting that it was meant to apply retrospectively.
Ms Vuyiswa Siciko
Ms Vuyiswa Siciko (Circuit Manager) testified that Ebenezer Majombozi High School is under her Circuit. The processes leading to the appointment of the incumbent happened under her supervision. On the date set for interviews she recalls that, as appearing in 14 August 2024 dated minutes, that the applicant was ranked the top candidate, followed by the 2nd respondent and then on the 3rd spot was Ms Linda Soci.
When she took the recruitment file to human resources section they checked whether all was done in line with policy. It was noted that even though the applicant was recommended he did not qualify for appointment as he had only short courses certificates. The District Director told them that a person with short courses cannot be appointed. The District Director then directed, exercising the HoD delegated powers, that the 2nd applicant be promoted instead. She was opted for because she has a degree in Tourism. The school’s SGB was then reconvened, and it revisited its decision, in line with what it was directed to do following the District Director’s decision. It then recommended that the 2nd respondent be promoted.
When asked about the documents confirming that the SGB had sat in order to pronounce on changing its decision and appointing the incumbent she referred to a handwritten paper said to have been signed by the SGB chairperson. The one page, five lines document mentioned that they recommend candidate number 2. Upon the return of that document the 2nd respondent’s appointment was given effect to.
Arguments
For the applicant it was argued that the document said to have been written by the SGB to recommend candidate number 2 for appointment could not be authenticated. There was never such a meeting as the applicant’s two witnesses who were part of the panel were never called to the said meeting. The reversal of the applicant’s recommendations as number 1 was malicious. The incumbent, when compared to the applicant had less experience and did not even teach Life Orientation. The applicant is seeking to be appointed as was rightly recommended by the panel.
For the 1st respondent it was argued that when the panel submitted recommendations wherein it put the applicant as 1st preferred candidate the recommendations had to be looked at. The District Director, exercising HoD Powers delegated to him, appointed the 2nd respondent (who was 2nd preferred candidate) in line with clause 5.5.1 of PAM. He opted for the 2nd respondent because she possessed a qualification with Tourism and Modules in Life skills. The applicant only had short courses. Correct and proper procedures were followed. There was justification for opting for the 2nd ranked candidate. The applicant, who in terms of Ngcobo v Standard Bank of South Africa and Others bears the onus of proving that there was an unfair labour practice, failed to discharge it. All his allegations were convincingly disputed. The applicant has also failed to prove, in line with paragraph 33 of ELRC Collective Agreement 3 of 2016, that there was conduct on the part of the employer that denied him a fair opportunity to compete for the post or that there was arbitrariness on the part of the employer. His claim stands to be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
The 1st respondent’s case is that the District Director, acting in terms of section 6(3)(f) of Employment of Educators Act 76 of 1998 (EEA) and clause B.5.5.3 of PAM HoD powers delegated to him, opted for appointing the 2nd rated candidate (the incumbent) instead of the applicant. In Head of the Western Cape Education Department and Others v Governing Body of the Point High School and Others the SCA held that the Head of Department is enjoined to act reasonably in making appointments. The SCA made the following noteworthy remarks:
‘[12] …. The contentions on behalf of the HoD both in the answering affidavits and in argument by counsel were to the effect that there was now no longer an onus on the HoD to make an appointment in conformity with the Governing Body’s recommendation or, indeed, its list containing its order of preference. It would be wrong, so the contention ran, to require the HoD to justify his decision to appoint anyone other than the recommended candidate. The contention that the amendment to the EEA broadened the scope of the HoD discretion is obviously correct. But the contention that this wider scope excused him from having to furnish acceptable reasons for his decision is not. The duty to justify the exercise of a discretion such as this arises directly from s 5 of PAJA and this duty has nothing to do with the scope of the discretion itself….’
The SCA is saying that the amended section 6(3) of the EEA still requires the HoD to make appointment in conformity with the order of preference in the recommendations of the SGB, which was at a vantage point of assessing the attributes and capabilities of the candidates. In instances where the HoD sees the necessity to appoint anyone else other than the preferred candidate, he is allowed to do so by the amended section 6(3)(f) but is not absolved from having to furnish acceptable reasons for his decision. He has to furnish the reasons for deviating from the preferred candidate, and that reason must be reasonable.
In the case at hand the decision not to promote the preferred candidate and opt for the second best is said to have been taken by the District Director, who was exercising the HoD section 6(3) powers delegated to him in terms of section 36(4)(a) of the EEA.
The record of the said decision by the HoD delegated functionary (District Director) was not presented as evidence. In General Council of the Bar of South Africa v Jiba and Others the High Court emphasized the importance of providing the record of the impugned or challenged decision, in line with rule 53 of the Uniform Rules, in order to ensure that the substance of the challenged decision is properly put to the fore.
What came to the record of proceedings with regards to the District Director’s decision to opt for candidate number 2 because of consideration of qualifications, was in the form of a version put by the respondent’s representative to the applicant and his witnesses. This District Director’s decision, in terms of section 6(3)(f), was also attested to by the EDO, who was not the actual decision maker. When the proceedings adjourned on 22 January 2026 the respondent’s representative had made known the respondent’s intention of calling the District Director to the stand on the next sitting as he was committed to some serious Departmental business that day. When the next session came on 24 March 2026, the EDO was called to testify on her role and to talk to the District Director’s decision. She did not even have the decision and its reasoning in written form with her. She testified on what was said to have been considered by the District Director. From all this it is rightfully concluded that the section 6(3) exercise of discretion exercised on HoD delegated powers to deviate from the panel’s preferred was without a reason from the delegated functionary. No reasons from the delegated functionary were put on record to be considered and analyzed for reasonableness. The said or purported deviation could therefore not be scrutinized for reasonableness in line with Head of the Western Cape Education Department dictum.
On the issue of whether the applicant qualified for the position or not, the first point of call is consideration of the requirements in the advert. Nothing is mentioned in terms of qualification in the advert. What is mentioned are learning areas, which are Tourism and Life Orientation for grades 8 to 12. The advert also mentioned that the medium of instruction for the post is English and Xhosa. For one to be considered for departmental head position in terms of paragraph B.3.2.1.1(b) of PAM (page 64) she or he has to have a recognized 3 or 4 year qualification, which includes professional teacher education; registration with teachers professional body SACE; advanced knowledge of teaching as provided for in the professional qualification; good teaching and assessment skills, good extra and co-curricular skills, good people management administrative and communication skills; and 3 years’ experience. The applicant and the 2nd respondent both met almost all these requirements. On the part of qualifications, they both have 3- or 4-year qualifications which include professional teacher education. They are both registered with SACE. They both have advanced knowledge of teaching as provided in for in the professional qualification. The applicant has short courses in Tourism and Life Orientation and has been teaching these two learning areas since 2018. The applicant has a slight edge in Tourism learning area as she has a degree in this learning area. She is teaching it and got to be mentored by the applicant when she arrived at Ebenezer Majombozi. The applicant also taught Life Orientation, which was not taught by the 2nd respondent. The notion that the applicant did not qualify for promotion is not supported by any factual finding. The District Director’s reasons for finding that he did not meet the post requirements could not adequately be interrogated as there is no written reasons by him and he did not testify in the proceedings and put his reasoning on record.
The applicant was eligible to be shortlisted, and this was agreed to by human resources Deputy Director. The 2nd respondent got the opportunity, equally with the applicant, to be interviewed and to contest her candidature. It was from that process, to which the applicant was rightfully shortlisted, that the applicant came out as the top performing candidate. There is no evidence that the interview process was flawed in any shape or form. The District Director’s decision (exercising the HoD delegated powers) to substitute the panel’s decision is thus held to have amounted to unfair labour practice. His decision is impugned, in line with Head of the Western Cape Education Department dictum, based on it having failed the reasonableness test.
Relief
The relief sought by the applicant is for the 2nd respondent’s appointment (or promotion) to be reversed and he be retrospectively promoted to the position. The test for this relief to be opted for is that: but not for the employer’s conduct, the applicant would have been promoted to the position. The applicant qualified for the position, was rightfully shortlisted and was the best candidate in interviews. There was no justifiable reason for not promoting him and opting for the 2nd ranked candidate. The 2nd respondent’s appointment (or promotion) stands to be reversed, but not retrospectively as such would financially disadvantage her while she did not promote or appoint herself. A fair and equitable relief for the applicant, who would have been promoted had it not been for the unfair and unreasonable decision of the District Director, is that of promoting him retrospectively with effect from 18 October 2024.
The applicant’s gross salary is R41 489.25 per month (R497 871.00 per annum) and is way above the challenged departmental head position, which was advertised at gross salary of R34 379.25 (R412 551.00 per annum). In these circumstances clause B.8.6.1 of the PAM Document provides that the salary of an educator who is promoted must be adjusted to the minimum notch of the salary range applicable to the post level, provided that the educator’s salary is at all times increased by at least 6 % irrespective of whether the current notch code falls below or within the higher salary range. Calculation of 6 % of the applicant’s monthly salary of R41 489.25 amounts to R2 489.36. The months to be factored in from November 2024 (as effective promotion date is 18 October 2024) to the date of issue of the award are 18. The backpay due to the applicant is R44 808.48 (R2 489.36 x 18 months)
AWARD
I therefore make the following award:
52.1. The 1st respondent, the Eastern Cape Department of Education, committed an unfair labour practice as provided in section 186(2)(a) of the LRA in that it acted in substantively unfair manner when it did not promote the applicant, John Kennedy Mkonzi Miya, to departmental head position (post 59 of volume 2 of 2024 bulletin) on 18 October 2024 and promoted the 2nd respondent instead.
52.2. The 1st respondent is ordered to reverse the appointment (promotion) of the 2nd respondent, Yonela Lubelo, to Ebenezer Majombozi High School departmental head position (Tourism and Life Orientation) (post 59 of volume 2 of 2024 bulletin) by not later than 20 May 2026.
52.3. The 1st respondent is further ordered to promote the applicant to Ebenezer Majombozi High School departmental head (Tourism and Life Orientation) (post 59 of volume 2 of 2024 bulletin) retrospectively with effect from 18 October 2024. The applicant’s salary or notch is to be increased by 6% (6 notches) retrospectively in line with clause B.8.6.1 of PAM as his notch was above the minimum notch of the post.
52.4. As a result of retrospective effect of the applicant’s ordered promotion the 1st respondent is ordered to pay the applicant the difference in what he earned and the clause B.8.6.1 factored increase from 18 October 2024 to the date of the award, which is R44 808.48. The 1st respondent is to pay this amount to the applicant, minus any amounts that are to be deducted in terms of the law, by not later than 20 May 2026.