Case Number: ELRC1049-25/26EC
Panelist: Hadley Saayman
Date of Award: 21 August 2026

In the ARBITRATION between

NAPTOSA obo Lettie Jacobs

And

Department of Education – Eastern Cape
(1st Respondent)

Beraldene Frolick
(2nd Respondent)

Applicant’s representative: Mr. Anton Adams


Applicant’s address:



Telephone:
E-mail: antona@naptosa.org.za

1st Respondent’s representative: Mr Garth Jacobs

Telephone:
E-mail: Garth.jacobs@ecdoe.gov.za
Euan.Hector@ecdoe.gov.za

    2nd Respondent’s representative   :  	

Mr. Mame Zonwabele


DETAILS OF HEARING AND REPRESENTATION

1. This matter was set down for arbitration in terms of Section 186(2)(a) of the Labour Relations Act (LRA) and concluded on 20 July 2026. The Applicant, Ms. Lettie Jacobs was represented by Mr. Anton Adams a Union official of NAPTOSA. The 1st Respondent, the Department of Basic Education-EC was represented by Mr. Garth Jacobs, the Acting CMC-Head, Humansdorp. The 2nd Respondent and incumbent, MS. Beraldine Frolick was represented by Mr. Mame Zonwabele, a Union official of SADTU. The parties agreed to submit written closing arguments by 3 August 2026, which the applicant and 1st respondent has done and were considered. ISSUE TO BE DECIDED
2. I am required to determine whether the 1st respondent committed an unfair labour practice as
   contemplated by Section 186(2)(a) of the LRA. BACKGROUND TO THE ISSUES
3. The Applicant, Ms. Lettie Jacobs applied for a vacancy of a Departmental Head (HOD)-(post-level 2) at Rietberg Primary School, which was advertised as post number 854 in Bulletin-Volume 2 of 2025. The Applicant was shortlisted and interviewed. The 2nd Respondent, Ms. Beraldene was ranked number one (1), recommended and appointed as Departmental Head.
4. The Applicant is currently an educator (post-level 1) at the above-mentioned school. She commenced as
   Grade-R practitioner during 2006 until 2017 and as Foundation Phase educator at the same school since
   2017. The Applicant claims that she was treated unfairly and that the incumbent Ms. Frolick was groomed
         and favoured for the position as Departmental Head.
5. The relief sought is that the appointment of the incumbent be set aside and that the post of Departmental Head be re-advertised. SURVEY OF EVIDENCE AND ARGUMENT
6. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
   Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand. APPLICANTS EVIDENCE
7. The Applicant, Ms. Lettie Jacobs, provided testimony regarding her employment, experiences, and observations related to the appointment process for the position of Departmental Head at Rietberg Primary School. Ms. Jacobs holds a Post Level 1 Foundation Phase teaching position at the school, having been employed there since 2018 on a permanent basis. Her qualifications include the National Professional Diploma in Education (NPDE), and she has been teaching in the Foundation Phase since 2017. Since 2021, she has undertaken responsibilities as a member of the School Nutrition Programme Team. Outside of her role at the school, she was involved as a secretary in a community-based women’s club.
8. Ms. Jacobs indicated that her motivation for applying for the HOD position was her belief that she was a suitable candidate and her recognition of her hardworking nature. She expressed the view that the appointed candidate, and incumbent, Ms. Frolick was groomed and favoured for the position. She explained that when the Principal’s post became vacant, the existing Departmental Head was moved to Deputy Principal, and Ms Frolick was appointed to act in the vacant Departmental Head’s role. Ms. Jacobs noted that there was no formal orientation or fair opportunity for other potential candidates to gain experience in the acting role, which she perceived as unfair, given that Ms. Frolick was favoured to gain prior experience and was sent to relevant courses before the vacancy arose. The advantage gained by Ms. Frolick through her assistance to the former Departmental Head over approximately four years positioned her favourably, providing her with a strategic benefit.
9. In terms of the number of educators, the Foundation Phase comprises twelve educators. Regarding opportunities for acting roles and training, Ms. Jacobs confirmed that, aside from Ms. Frolick, no other educators were invited or informed about acting opportunities or departmental head training sessions. She stated she was not offered participation in departmental head workshops or training programs, which she considered an unfair advantage granted solely to Ms. Frolick. She also noted that she had not inquired about attending such courses. Ms. Jacobs expressed the view that the process was not fair, citing her concern that the scoring panel was composed of individuals who may have had a personal relationship with Ms. Frolick, which she believed could have influenced the process.
10. The vacancy was advertised for Afrikaans medium of instruction, and the school is not bilingual. The interview questions were posed in Afrikaans and translated into English by Ms. Petersen, who served as the interpreter and a close friend of Ms. Frolick. Ms. Jacobs answered in Afrikaans, and her responses were summarized and translated into English. She expressed concern that her responses may not have been accurately translated and was unsure if her concerns were raised during the interview.
11. Panel members included Ms. Visagie, who served as secretary, and Ms. Avontuur, who participated in questioning and was employed at the school as a meal server as well as a parent representative. Ms. Jacobs identified a social media post by the incumbent’s daughter Creshne, suggested that the post was made shortly before the official appointment results were announced. She indicated that the principal was informed of the social media post and that staff was aware of it. The principal reportedly expressed displeasure regarding the posting, emphasizing that official communication had not been received at that time.
12. Ms. Jacobs requested that the appointment process be reviewed and conducted anew by an independent panel to ensure fairness and transparency. The evidence presented raises concerns regarding potential bias, lack of transparency, and procedural fairness in the appointment process. The social media incident further underscores issues related to confidentiality and integrity. Based on her testimony, it is recommended that an independent review be undertaken to address these concerns and to uphold the principles of fairness and proper procedure in future appointments.
13. SUMMARY OF APPLICANT’S WRITTEN CLOSING ARGUMENTS:

13.1 There are no official minutes or detailed records of the interview proceedings.
13.2 No documented responses or statements from the candidates during the interview process are available.
13.3 There is an absence of recorded reasons or justifications for the decisions made by the selection panel.
13.4 Only limited records exist concerning the ratification or approval of the appointment.
13.5 The lack of comprehensive records prevents the verification of scoring and evaluation criteria applied
during the selection process.
13.6 The accuracy of translations of interview responses cannot be substantiated due to inadequate
documentation.
13.7 The basis for comparing candidates and assessing their suitability remains unverified in the absence of
proper records.
13.8 The reasons behind the selection of Ms Frolick cannot be conclusively established from existing
documentation.
13.9 The cumulative evidence indicates that the panel was improperly constituted, and there is a close
association between a translator and the successful candidate, raising concerns of bias.
13.10 Given these deficiencies and irregularities, the appropriate and fair course of action is to set aside the
original appointment and initiate a new, properly conducted selection process rather than proceeding with
the current appointment.

      1st RESPONDENT’S EVIDENCE

14. The 1st Respondent called only one witness, Ms. Regina Hobbs, the Principal of the school. She confirmed her position as the head of the institution and stated that her role was as resource person in the recruitment process. She had to ensure that the process was conducted fairly and in accordance with all procedural requirements.
15. Ms. Hobbs indicated that there was an interview panel constituted of two parents and one teacher. She confirmed that all candidates were interviewed using the same set of questions, ensuring consistency and fairness in the interview process.
16. She observed that the process was conducted equitably, noting that all candidates had the same opportunity to respond to the questions. She further stated that she personally documented the responses of the candidates and listened to the translations from Afrikaans to English, affirming that the translations appeared to be accurate. No objections were raised by any of the four candidates regarding the translation.
17. Ms. Hobbs explained that Ms. Avontuur was selected as a parent representative by the School Governing Body (SGB) in 2024. She testified that Mrs. Avontuur was still a parent in 2025 and a member of the SGB. When Mrs. Avontuur applied to be a feeder, she recused herself from the meal server’s vacancy interview panel. The panel then considered six applications for feeder positions, of which five were to be appointed. The criterion that feeders must be parents of the school, one applicant was not a parent. Consequently, the SGB panel decided to appoint Mrs. Avontuur as a feeder.
18. Ms. Hobbs stated that she was not aware of any grooming of Ms. Frolick for the post. She explained that whenever a staff member had aspirations for advancement, they were encouraged to express their interest. She noted that prior to her appointment as acting HOD, Ms. Frolick frequently assisted with administrative tasks and demonstrated willingness to participate.
19. Concerning allegations of bias, Ms. Hobbs stated that she was unaware of any bias between Mrs. Pieterse and Ms. Frolick, asserting that everyone at the school has some form of relationship with others. In her opinion, the recruitment process was fair, as she listened attentively to the proceedings and observed that the process was conducted transparently. 2nd RESPONDENT’S EVIDENCE
20. The 2nd Respondent, Ms. Beraldene Frolick elected not to testify and abide by the evidence of the 1st Respondent.
21. SUMMARY OF THE 1st RESPONDENT’S WRITTEN CLOSING ARGUMENTS

21.1 The interview process was properly conducted according to applicable promotion procedures.
21.2. The applicant fully participated in the process and had an equal opportunity to compete.
21.3 Interview questions were applied consistently to all candidates.
21.4 Translation into English for the Chairperson was done equally for all Afrikaans-speaking candidates, without objections, ensuring fairness.
21.5 The translation process helped panel members evaluate candidates on an informed and equal basis.
21.6 The applicant’s reliance on Ms. Avontuur’s participation is unsubstantiated, as the relevant regulation was not properly presented or tested in evidence.
21.7 The Resource person testified that Ms. Avontuur’s presence posed no procedural risk and did not influence the outcome.
21.8 The interview results showed Ms. Jacobs placed third, not second, undermining claims of bias or undue influence.
21.9 The Employer demonstrated that the process was fair, transparent, objective, and rational.
21.10 The Employer requests the Commissioner to dismiss the Applicant’s entire referral.

      ANALYSIS OF EVIDENCE AND ARGUMENT

22. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as
    meaning inter alia:
    (2) “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; …”
23. The purpose of the ELRC Collective Agreement 1 of 2024, is inter alia:
    • To provide uniform procedures and selection criteria, as well as structures that will be used in the
    selection process for filling vacant and funded educator posts.
    • To promote the values of fairness, equity, diversity and transparency in the filing of advertised posts.
24. The scope the Agreement 1 of ELRC Collective 2024 applies to bind the Employer and all Educa-tors

as defined in the Employment of Educators Act, 1998 (as amended).

25. Fairness requires that the position and interests of both the employee and employer are taken into account
    in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or
    value judgment to established facts and circumstances. In doing so, it must have proper regard to the
    objectives sought to be achieved by the Labour Relations Act, 66 of 1995 as amended (LRA).
26. Under cross-examination Ms. Jacobs was asked to identify Creshne, whom she confirmed is Ms. Frol-ick’s daughter. When questioned about the date of the photograph in question, the witness stated that there was no date on the photograph and was unable to confirm when it was taken or whether it pre-dated certain events. The witness also indicated she was unaware of the specific date on which the principal reprimanded staff members. It was noted that this information is included in the grievance bundle.
27. Ms. Jacobs expressed the view that the process was unfair and confirmed that four individuals were interviewed for the position of Departmental Head, with three from her school in the foundation phase being considered. She acknowledged that the selection process appeared to have been influenced by prior knowledge of the candidates, especially regarding Ms. Frolick, whom she believed was appointed partly due to prior exposure and favouring. She stated that she was shortlisted along with the other three candidates considered.
28. Regarding the criteria, Ms. Jacobs confirmed that all three candidates from her school, including Ms. Hobkins, met the requirements for shortlisting, and all were scored by the panel. She clarified that Ms. Avontuur was initially employed in the feeding scheme before becoming a parent representative on the SGB. The witness was uncertain about the electoral officer’s identity but confirmed that Ms. Avontuur was elected as a parent member and is currently serving on the SGB. She stated that she could not determine whether Ms. Avontuur was biased for or against any candidate during the panel process and denied that her scoring was influenced by Ms. Avontuur’s presence.
29. Ms. Jacobs refuted the suggestion that she was scored higher than Ms. Frolick by Ms. Avontuur and indicated that her performance was unaffected by her presence. She acknowledged that she believed Ms. Petersen displayed bias towards Ms. Frolick, particularly because she felt Ms. Petersen should have recused herself due to her close relationship with Ms. Frolick. She confirmed that Ms. Petersen did not score Ms. Frolick the highest among the panel members. Additionally, the applicant stated she was never given the opportunity to advance to a role above Level one (1).
30. During re-examination, it was established that Miss Pieterse awarded 18 points to Miss Frolick and 10 points to the applicant, with an eight-point difference. Ms. Avontuur awarded 14 points to Ms. Frolick and 11 points to Ms.Jacobs, a three-point difference. It was also confirmed that Ms. Avontuur was not supposed to be present during the interview process.
31. During cross-examination, Ms. Hobbs confirmed that the union members involved in the process only observed and did not partake in scoring or decision-making, and she was unsure whether the union members were trained to exercise discretion in their assessments. She acknowledged that each inter-view question was allocated 25 points, and when Ms. Pieterse awarded 18 points to Ms. Frolick and 10 points to Ms. Jacobs, she did not believe this reflected any form of discretion, asserting that the scor-ing was based solely on the answers received from the candidates.
32. Ms. Hobbs clarified that Ms. Avontuur was serving on the School Governing Body (SGB) in 2024 and became a member of the SGB in 2025, the same year she applied to be a feeder. She confirmed that she was appointed as a feeder in 2025 and that the interviews for the position took place in that same year. At the time of the interviews, Ms. Avontuur was employed by the school. When questioned about the propriety of a resource person—someone employed by the school—representing parents on the SGB, she expressed uncertainty but affirmed that Ms. Avontuur was one of the parents. She denied that she failed the process as a resource person.
33. Ms. Hobbs also addressed language issues, confirming that the primary language of instruction was Afrikaans, although the chairperson understood both English and Afrikaans. She stated that transla-tions were provided to accommodate union members and the chairperson, who was not fluent in Afri-kaans. The decision to have questions posted in both Afrikaans and English was made collectively by the panel members. She explained that the questions were asked in Afrikaans and translated by Mrs. Pieterse, whose qualifications as a translator she did not verify. She confirmed that Mrs. Pieterse also scored the candidates, and that pauses were given to ensure answers were accurately conveyed. There was no evidence of any prior relationship between the interpreter and the candidates, and translation services were used for all applicants, not selectively.
34. Regarding the vacancy, Ms. Hobbs was unable to specify how long the post had been vacant or how long Ms. Frolick had acted in the position. She stated that, knowing the post was to be advertised, she as principal had given other staff members within the foundation phase the opportunity to gain similar experience. Out of a total of twelve staff members in the foundation phase, only Ms. Frolick was given the opportunity to act, which she considered fair. She believed Ms. Frolick demonstrated the ability, willingness to learn, and brought value to the role. She clarified that she did not suggest other staff members were unwilling to learn but that Ms. Frolick was performing well during her acting period.
35. Lastly, Ms. Hobbs was asked about a photograph shared by Ms. Frolick’s daughter on social media prior to the official appointment announcement, even before she knew she had been appointed as Head of Department (HOD). She stated she was not aware of this. She explained that on the day Ms. Frolick received her offer letter, both Ms. Pietersen and Ms. Frolick were attending training at Bergsig School. The letter was sent to Ms. Frolick, who was at Bergsig for signing. Ms. Frolick sent it back and she informed her family of her appointment, which was subsequently shared publicly. The following morning, the principal expressed displeasure over this, as she had not had an opportunity to inform staff beforehand. When asked whether an appointment had been formally made, she stated she did not know and confirmed that she did not possess an appointment letter.
36. Clause 7.9 of the ELRC Collective Agreement 1 of 2024 explicitly mandates that the School Governing Body must maintain accurate and comprehensive records of both the shortlisting and inter-view processes. Furthermore, clause 7.7 of the same Collective Agreement requires that the School Governing Body return all applications and forward copies of the minutes to the Department of Educa-tion. It is undisputed that there are no proper minutes documenting the entire interview process; and a single, limited document pertaining to the ratification meeting exists. The resource person, Ms.Hobbs, conceded that there were no records of the candidates’ responses in the evidence bundle of the re-spondent, which raises significant concerns regarding the reliability and integrity of the scoring and evaluation process. This absence of proper documentation critically undermines the ability to ascertain how the School Governing Body could have arrived at a fair and rational decision during their ratifica-tion meeting and subsequent recommendation, thereby compromising the transparency and legality of the process.
37. Furthermore, there were no records of the panel’s motivation for their decisions regarding the candi-dates, as required by clause 7.2 of the Collective Agreement.
38. Under the South African Schools Act 84 of 1996 as amended, specifically Section 23(3), it is stip-ulated that a parent who is employed by the school may serve on the School Governing Body (SGB) only if they are elected as a parent representative and are not acting in their capacity as an employee during their participation. However, the Act generally emphasizes the distinction between employees and parent representatives to prevent potential conflicts of interest.
39. More specifically, Section 23(3) states: A parent who is employed by the school shall not be eligible to serve as a member of the SGB unless they are elected as a parent representative and serve in their capacity as a parent, not as an employee.
40. In addition, the Regulations for the Conduct of SGB Elections (published under the South African Schools Act) clarify that staff members and parents are to be elected separately, and staff members are not eligible to serve as parent representatives.
41. In summary: The South African Schools Act and its regulations prohibit an employee of the school from serving as a parent representative on the SGB, unless they are elected in their capacity as a parent, and their role as an employee does not influence their participation as a parent representative. The key provision is found in Section 23(3) of the South African Schools Act and the accompanying regula-tions.
42. The Applicant submits that the participation of Ms. Avontuur as an employee in the interview process was unlawful. This contention is supported by the confirmation of the resource person, Ms. Hobbs, who claims that her circuit manager granted permission for Ms. Avontuur to serve simultaneously as a parent member and as an employee on the School Governing Body (SGB). Such dual roles are alleged to have compromised the fairness and impartiality of the interview process, thereby rendering her par-ticipation unlawful and invalid.
43. The Applicant, Ms. Jacobs submits that the participation of Ms. Avontuur as an employee in the inter-view process was unlawful. This contention is supported by the confirmation of the resource person, Ms. Hobbs, who stated that her circuit manager granted permission for Ms. Avontuur to serve simulta-neously as a parent member and as an employee on the School Governing Body (SGB). Such dual roles are alleged to have compromised the fairness and impartiality of the interview process, thereby rendering her participation unlawful and invalid.
44. The resource person, Ms. Hobbs demonstrated evasiveness in her responses to questions and ap-peared uncertain regarding the legislative requirements stipulated by the Schools Act at various stages of her testimony. The respondent’s case relies heavily on the evidence provided by this individual. However, her credibility is significantly compromised. It is evident that she exhibits bias in favour of the incumbent, which undermines the objectivity and reliability of her testimony.
45. Furthermore, in Annexure 13, compiled by the resource person, she explicitly stated on page 70 that the applicant was not proficient in teamwork. Notably, she failed to provide any commentary or as-sessment regarding Ms. Frolick on page 40 of the same annexure, leaving the section pertaining to Ms. Frolick unfilled. This inconsistency raises serious questions about the impartiality and thorough-ness of her evaluation and casts doubt on the overall credibility of her evidence.
46. The argument presented by the first respondent, asserting that the interview results demonstrated Ms. Jacobs’s placement as third, thereby purportedly negating claims of bias or undue influence, does not substantively advance the dispute. In fact, this assertion is contradicted by the documented interview outcomes. This discrepancy undermines the respondent’s position and fails to address the core issues of procedural fairness and integrity in the selection process. Consequently, the claim that the results support the absence of bias or undue influence is unfounded and does not mitigate the concerns re-garding the conduct of the interview and the overall process.
47. It was common cause that Ms. Pieterse was utilised as an interpreter during the interview process. An unqualified interpreter in an interview and selection process can significantly compromise the legitima-cy, fairness, and legality of the entire procedure. Here are key points elaborating on this issue, sup-ported by South African case law:
48. Compromised Fairness and Due Process: The Constitution of South Africa enshrines the right to fair labour practices and fair administrative procedures (Section 195 of the Constitution). When an interpreter lacks the necessary qualifications or competence, there is a risk that the candidate's re-sponses are misinterpreted or inaccurately conveyed, which can unfairly prejudice the candidate’s op-portunity to fairly present their case or demonstrate their competencies.
49. Violation of Procedural Fairness and Natural Justice: The principle of audi alteram partem (hear the other side) requires that all candidates are given a fair hearing. An unqualified interpreter under-mines this principle by potentially distorting the candidate’s responses or the interviewer’s questions, leading to an inaccurate assessment of the candidate’s abilities. This was emphasized in: National Education Health and Allied Workers Union v University of Cape Town (2016) ZACC 27, where the Court underscored the importance of fair procedures in administrative decision-making.
50. Impact on the Validity and Reliability of the Assessment: The use of an unqualified interpreter can lead to misinterpretation or omission of responses, thus affecting the validity (accuracy) and reliability (consistency) of the assessment process. This compromises the integrity of the selection process, which must be based on fair and objective criteria. The case of MEC for Education: KwaZulu-Natal v Pillay (2007) ZASCA 11, emphasizes the necessity for fair procedures that uphold transparency and objectivity in public employment processes.
51. Potential Breach of Legislation and Policy: Employers are expected to adhere to fair employment practices, including ensuring that communication during interviews is clear and accurately interpreted. Failure to appoint qualified interpreters may breach the Labour Relations Act 1998, as amended. and the Employment Equity Act, (No. 55 of 1998) which promote fairness and non-discrimination.
52. In S v Mothupi (2000) (1) SA 423 (CC), the Constitutional Court highlighted that procedural fairness is a constitutional imperative. If an interview process is compromised by the use of an unqualified inter-preter, it can be challenged on the basis that the process was procedurally flawed, rendering any sub-sequent decision potentially invalid.
53. Potential for Bias and Unfair Advantage: An unqualified interpreter may inadvertently introduce bias or favouritism, intentionally or unintentionally, which can distort the interview outcomes. This may vio-late principles of fairness and equal treatment enshrined in employment law and constitutional protec-tions.
54. Utilising an unqualified interpreter in an interview process risks undermining the fairness, trans-parency, and legality of the selection procedure. It can lead to questions about the validity of the out-comes and may serve as grounds for review or challenge under South African law, as established in cases such as Pillay and others emphasizing procedural fairness and the importance of fair adminis-trative conduct.
55. Ms. Pieterse, as a teacher and scorer involved in the interview process, could potentially serve as an interpreter if she possesses the requisite fluency and understanding of both Afrikaans and English. Her role would involve accurately translating questions posed to the candidate and responses given during the interview, ensuring that the communication is clear, precise, and faithful to the original language. This would require her to be competent in both languages and familiar with the subject matter to pre-vent misinterpretation.
56. However, the appropriateness of using Ms. Pietersen as an interpreter depends on her qualifications and her impartiality. If she is not formally trained or qualified as an interpreter, or if her role as scorer could influence her impartiality, this could compromise the fairness of the process.
57. The fact that the chairperson did not understand Afrikaans properly has significant implications for the legitimacy of the interview process. If the chairperson was unable to comprehend the questions or re-sponses accurately, it raises concerns regarding the fairness and transparency of the proceedings. Accurate understanding by the chairperson is essential for overseeing the process, ensuring proce-dural fairness, and making informed decisions.
58. The lack of proficiency in Afrikaans by the chairperson can lead to:
    58.1 Misinterpretation of Responses: The chairperson may have misunderstood or missed nuances in candidates’ answers, affecting the assessment.

58.2 Procedural Irregularities: The chairperson’s limited understanding could hinder effective facilitation and oversight, undermining the fairness of the process.
58.3 Questionable Validity of Outcomes: The integrity of the interview results may be challenged if key participants cannot fully comprehend the proceedings, potentially rendering the selection process inva-lid.
58.4 Breach of Fairness Principles: Under South African law, fairness in administrative and employment processes requires that all parties understand and participate meaningfully. The chairperson’s lan-guage limitations compromise this principle.
59. While Ms. Pieterse could serve as an interpreter if qualified, her role must be carefully scrutinized to ensure impartiality and competence. Simultaneously, the chairperson’s inadequate understanding of Afrikaans significantly undermines the legitimacy, fairness, and legality of the interview process.
60. The submission by the applicant, Ms. Jacobs, that Ms. Pieterse and Ms. Frolick are close friends was undisputed. This relationship raises concerns about the impartiality and objectivity of Ms. Pieterse’s role in the interview process, particularly if she was involved as an interpreter or scorer. The close friendship between these individuals could potentially influence her conduct, judgments, or interpreta-tions during the proceedings, thereby compromising the fairness and integrity of the process. Such a relationship casts doubt on the independence of the evaluation and undermines the principles of transparency and impartiality required in a fair selection process.
61. The submission by Ms. Hobbs that the translation from Afrikaans to English was intended for union observers is unpersuasive. This explanation does not logically hold, as union observers are not partici-pants in the interview process and, therefore, would not be prejudiced or adversely affected by the quality of translation. Their role is to observe and monitor the proceedings, not to participate in or in-fluence the interview itself. Consequently, the assertion that translation quality was solely for the bene-fit of observers fails to address the fundamental importance of accurate interpretation for the fairness and integrity of the interview process. It overlooks the critical need for clear and accurate communica-tion between the candidate and the interview panel, which directly impacts the validity of the assess-ment and the legitimacy of the selection outcome.
62. In Pietermaritzburg City Council v. T. M. Mkhize (2010) ZASCA 131, the Supreme Court of Appeal emphasized the importance of fairness and impartiality in employment decisions. The court held that favouritism or bias, whether actual or perceived, can undermine the legitimacy of a recruitment or promotion process. The case reinforced that decisions must be made based on merit and in accord-ance with fair procedures. If favouritism influences the decision-making process, the process may be invalidated, and the appointment or promotion can be challenged. This case underscores the necessity for employers to ensure transparent and unbiased processes, especially in public sector employment such as education.
63. In Minister of Education v. Sybrand van der Merwe (1994) ZACC 8; 1997 (3) SA 101 (CC). This landmark Constitutional Court case set a constitutional benchmark regarding fairness, equality, and non-discrimination in employment practices. The court held that any employment decision, including promotions, must be consistent with the rights enshrined in the Constitution, particularly the right to equality. Bias or favouritism, especially if motivated by personal relationships or prejudice, contravenes these constitutional rights. The case established that the procedures leading to employment decisions must be fair, transparent, and non-discriminatory. It also clarified that even if the decision-maker be-lieves they are impartial, the appearance or perception of bias can invalidate the process.
64. In South African Police Service v. Solidarity obo Barnard (2014) ZACC, it involved allegations of unfair discrimination and bias in disciplinary and employment procedures. The Constitutional Court confirmed that procedural fairness requires impartiality and that any appearance of bias could be grounds for overturning a decision. The case clarified that bias can be both actual (personal prejudice) or perceived (appearance of bias), and both can violate constitutional rights. In the context of educator promotion, this case supports the principle that decisions influenced by favouritism or relationships, ra-ther than merit, are unlawful and may be challenged.
65. In Grootboom v. National Prosecuting Authority (2014) ZACC, it involved a challenge to a decision that was perceived as biased and unfair. The Constitutional Court underscored that the legitimacy of employment decisions depends on adherence to procedural fairness and impartiality. Any evidence or perception of favouritism undermines the integrity of the process and can be grounds for review and remedial action. The judgment highlights that fairness in public employment, including in recruitment and promotion, is a constitutional imperative, and bias or favouritism can lead to invalidation of deci-sions.
66. In CUSA v Tao (2013) 34 ILJ 2274 (LAC), the Labour Appeal Court highlighted the critical importance of adhering to fair procedures in employment and promotion processes. The Court emphasized that “gross procedural irregularities, such as denying an employee a fair opportunity to be heard or making decisions based on incomplete or biased information, can fundamentally undermine the fairness of a promotion process.” The Court clarified that procedural fairness is not merely procedural formality but a substantive requirement that ensures legitimacy and fairness in employment decisions.
67. The Court further stated that “a promotion process that is marred by significant irregularities, which deprive the affected employee of a fair hearing or proper documentation, can be declared invalid.” It underscored that “even where the substantive criteria for promotion are met, procedural flaws can in-validate the decision if they undermine fairness.” The judgment reinforced that employers must follow transparent, consistent, and fair procedures to uphold the integrity of promotion processes.
68. This case illustrates that in the context of promotions, especially for positions of significant responsibil-ity such as departmental heads or senior educators, gross procedural irregularities—such as making decisions without documented criteria—can be grounds to challenge the fairness of the appointment.
69. In NEHAWU v UCT and others [2003] ILJ 95 (CC) “The focus of section 23(1) is, broadly speaking, the relationship between the worker and the Employer and the continuation of that relationship on terms that are fair to both. In giving content to that right it is important to bear in mind the tension be-tween the interests of the workers and the interests of the Employers which is inherent in labour rela-tions. Care must therefore be taken to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices. It is in this context that the LRA must be construed”. [Par 40]

70. Substantive Fairness: Focuses on why the decision was made. It requires that promotions be based on objective, legitimate, and merit-based criteria aligned with organizational needs. A decision be-comes substantively unfair if it is based on bias, nepotism, or arbitrary grounds that infringe upon a candidate's dignity or lack rational reason.
71. Procedural Fairness: Focuses on how the decision was made. The process must be transparent, predictable, and consistent. Candidates must be clearly informed of the criteria, granted equal oppor-tunities to compete, and provided with written reasons for the outcome so they can challenge the deci-sion if necessary.
72. In Mokhele v MEC for Education, Free State Province (2015) ZACC 46, the Constitutional Court examined the fairness of a promotion process within the public sector, emphasizing that promotion de-cisions must adhere to constitutional principles of fairness. The Court highlighted that substantive fair-ness requires promotions to be based on merit, qualifications, and organizational needs, and that deci-sions

influenced by bias, nepotism, or arbitrary considerations are unfair and violate constitutional rights. In the specific case, the Court found that the promotion had been based on arbitrary factors, rendering it substantively unfair. The Court also underscored the importance of procedural fairness, stating that the process must be transparent and consistent. Employees must be clearly informed of the criteria for promotion, given a fair opportunity to participate, and be provided with reasons for the decision, ena-bling them to challenge or review it if necessary. The failure to follow such fair procedures undermines the legitimacy of the decision and violates constitutional principles. This case reinforces that employers must ensure that promotion decisions are merit-based, transparent, and communicated clearly, with fair opportunities for all candidates to compete, and reasons for decisions openly provided. Overall, Mokhele emphasizes that both substantive and procedural fairness are fundamental in ensuring just and lawful promotion processes within workplaces.

73. It is undisputed that both the applicant and the incumbent possessed the requisite qualifications for the vacancy. Additionally, it is common cause that the ratification minutes on page 14 reflected that “all candidates performed fairly well“ during the interview process. However, the allocation of scores was markedly disproportionate and inconsistent. Ms.Frolick total score was 51 and Ms. Jacobs total score was 33.
74. Ms. Hobbs, the resource person, testified that each candidate was asked five (5) questions, however, no record of these questions was included in the respondent’s evidence bundle. Furthermore, it was concerning to note that the minutes indicated each candidate was allocated ten (10) minutes for their interview. This discrepancy raises questions regarding the fairness, transparency, and adherence to proper procedures in the evaluation process.
75. Having regard to the totality of the circumstances, I find that the process leading to the appointment of the incumbent was fundamentally flawed and marred by material irregularities. Accordingly, I am com-pelled to declare the appointment of the incumbent, Ms. Beraldene Frolick, invalid, null, and void. Therefore, the vacancy of Departmental Head-Foundation phase should be re-advertised without delay to afford a fair and lawful opportunity for suitable candidates to be considered for ap-pointment. I make the following ruling: AWARD
76. The1st Respondent, the Department of Education-Eastern Cape, committed an unfair labour practice as contemplated by Section 186(2)(a) of the Labour Relations Act. 1998, as amended.
77. The entire process was marred by significant irregularities and the appointment of the incumbent, 2nd respondent Ms. Beraldene Frolick is declared invalid, null and void.
78. The vacancy of Departmental Head-Foundation phase should be re-advertised as soon as possi-ble.
79. No order as to costs.

Commissioner: Hadley Saayman
Sector: Education