IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case number: ELRC137-26/27EC

In the matter between

Sikunyana, Emihle Applicant

And

Education Department of Eastern Cape Respondent

Appearances: For the Applicant: Sikunyana, Emihle
For the Respondent: Miss. Ntombomzi Damane – Chief Education Specialist: Employee Relations
Arbitrator: Thobela Ncetezo
Heard: 21 July 2026
Delivered: 21 August 2026
SUMMARY: Unfair labour practice – Section 186(2)(a) of the LRA – .Promotion

ARBITRATION AWARD

Details of hearing and representation

1. The dispute was set down for arbitration on 21 July 2026 at Bathandwa Ndondo Office Park in Komani. The Applicant, Miss Sikunyana Emihle appeared in person. Miss. Damane who is employed as Chief Education Specialist: Employee Relations represented the respondent, Education Department of Eastern Cape.
2. The proceedings which were digitally recorded were conducted in English. The respondent requested to submit closing arguments in writing.

Issue to be decided

3. I am required to determine whether the conduct of the 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

4. The Applicant was employed by the Respondent on 5 March 2026 as a Post Level 1 Educator at Kopano Senior Secondary School (Kopano) in Ntabethemba, at a salary of R25 551.23, after responding to an advertisement for an educator position that was posted on a WhatsApp group. She completed and signed an application for employment as an educator on 6 March 2026. She was not remunerated for the first two months of her employment and, upon making enquiries, was informed that this was because she had not yet been captured as an employee on the Respondent’s system.
5. Upon commencing her duties, she was informed that the position would become permanent after three months. She was subsequently informed, however, that she was employed on a fixed-term contract for the period 11 March to 30 June 2026.
6. The respondent submitted that it neither has a current permanent vacant post at Kopano SSS the school nor has it advertised a post at that school but the applicant was employed on contract basis for three months. The post was not advertised but she was employed through process of walk-in temporary position.

Survey of evidence and arguments

Applicant’s case

7. She testified that on 4 March 26 she received a WhatsApp message from a colleague that a school was looking for Physics and Agricultural Sciences teacher. She sent her CV, SACE certificate, academic transcript and identity documents to the school.
8. On the same day, at approximately 14h00, the school principal contacted the Applicant and asked whether she would be able to report for duty at Kopano Senior Secondary School on 5 March 2026. She confirmed that she would be able to do so and, upon arrival, met with the principal and other staff members. She thereafter commenced teaching learners in Grades 8 to 12.
9. On 6 March the principal, Miss. Mbasani, gave her documents to sign and she told her that her post would be permanent after 3 months.
10. During the first week of May 2026, although she could not recall the exact date, the Applicant became aware that she had not been captured on the Respondent’s system. She testified that there were no documents reflecting her as an employee and that she had not been remunerated for two months.
11. She was disputing that she was not part of the school and that she was not appointed on a permanent basis. She received an appointment letter on 1 June 2026 after conciliation which was held on 29 May 2026.
12. The applicant disputed the respondent’s position that she was not part of the school and that she had not been appointed on a permanent basis. She received a letter of appointment on 1 June 2026, following the conciliation proceedings held on 29 May 2026. She stated that she wants to be appointed on a permanent basis.
13. Under cross-examination, the Applicant testified that she had received the advertisement for the post at Kopano SSS through a WhatsApp group. She was uncertain whether advertisements posted on that WhatsApp group were authorised by the Respondent but conceded that the advertisement had not been issued by the Department of Education and had instead been circulated by teachers employed at the school.
14. She further conceded that the School Governing Body (SGB) could make its own arrangements regarding the employment of educators. However, she testified that the principal had informed her that the post was a Department of Education post and not an SGB post.
15. The Applicant stated that she did not submit a formal letter of application for the position but completed the form marked AB-P2, paragraph 1, which, according to her evidence, is ordinarily signed when an employee is being employed. She testified that this is the practice followed in the Western Cape. She stated that at the time that applied for the Kopano SSS post she was working in the Western Cape and when she was told to report for work the next day, she left to start work at Kopano.
16. The principal showed the applicant the section of the form she had to fill and said that she would complete Section A of the form (AB-P2) on her behalf herself.
17. She was given a letter of appointment to sign so that she can be paid for the period she had worked. The letter reflected that she was employed at a different school from where she worked. Her dispute is for the post at Kopano SSS where she exercised her duties at Kopano and not Masivuye which as was stated in her letter of appointment. The respondent also wanted to pay her remuneration at the rate paid by the SGB.
18. She was told that the school does not have a post and that the principal assumed that there was a vacant post. The Circuit Manager (CM), Mr Molokolo, said that they cannot put her on the system because Kopano SSS does not have a vacant post.
19. She was told that she would be placed under Masivuye until Kopano had a post. The advert on the WhatsApp group was by the school and not the Department. She testified that she has never been to Masivuye at the time of her employment.
20. She further stated that she would not have moved to Eastern Cape if she was not told that there is a post at Kopano. She only found out that the school does not have a post when she was making a follow-up on her salary. The principal accounts for the DOE.
21. The CM was told by HR that there is no post at Kopano and the latter told her of the position. During the 2 months she worked there the principal told her that she is waiting for the CM.
22. When she went to the office of the CM he told her that there is no post at the school, so he knew about what was happening at the school. When she came to submit her documents at the District Office, she was told that the Circuit Manager was told about her assumption of duties. He also knew about her because the school reports to him.
23. Her application was not managed by the SGB and she declined the payment for the SGB post because she was not in the SGB post. The principal allowed her to work at the school. She told her that after three months her employment would be converted to permanent employment

Respondent’s case

24. The witness of the respondent, Mr. Samkelo Molokolo testified that he is employed by the respondent as a Circuit Manager at Ntabethemba Circuit with twenty-five schools under him and Kopano SSS is under his supervision.
25. In 2025 a Post level 1 educator was promoted to a post of a principal. There was then an assumption that they would have a vacant post. On the first term the SGB advertised the post and he became aware of this in May. He took it to the department and was told that there was no post. At that time there was an incumbent.
26. He called the principal and told her that there was no post as the system automatically transferred another educator at that school into that post.
27. The principal told him to employ the applicant on the SGB post and also try to find her another school. He informed the applicant that there was no vacancy at Kopano but would find a way to pay her on an SGB post for the days that she had worked. He also instructed the principal to inform the SGB.
28. The SGB said that they are a small school and have no funds. He asked the principal to write a motivation letter to the Circuit Manager, stating that they must find a way of paying her as she had worked.
29. They found a school which was a being considered for closure, opened it on the system so that they could be able to pay the applicant. She was placed at Kopano as Masivuye was not operational. They placed her as a temporary teacher from March to 30 June 2026.
30. They backdated her letter of appointment to correct the non-payment of the applicant for the two months that she had worked. This was a form of misrepresentation by the district after becoming aware that there is no vacancy at Kopano SSS.
31. He sent the applicant a copy of the appointment letter and advised her to report at Kopano. She only engaged with the applicant once when he informed her that there is no post at Kopano. This was between April and May (he was not certain of the exact month and date).
32. He informed her that he would try to find a way to bring her back if a suitable post became available, and that, as of 2026, the district had no vacancies. He further indicated that the recruitment process for the post had commenced in February.
33. He stated that Post Level 1 educators were employed on a temporary basis as they could not convert the temporary post into permanent position on the post level.
34. Their process of converting a temporary contract is that the contract must not exceed 3 months, if it exceeds 3 months then the contract will be converted into a permanent position in terms of 198B of LRA.
35. He stated that the Applicant had been employed on a fixed-term contract, which had since lapsed. He explained that permanent employees are appointed through vacancies advertised in the departmental bulletin. The district then develops a recruitment plan and determines the date on which applications will be sifted in accordance with the requirements specified in the bulletin. The applications are thereafter forwarded to the school, which shortlists candidates and invites those shortlisted for interviews. The successful candidate is then issued with an appointment letter. He stated that the Applicant’s appointment was made by the school and the SGB.
36. He explained that the process for permanent employment involves interviews, the scoring of candidates, a recommendation by the interview panel, and appointment by the Head of Department and the District Director, who is responsible for ensuring that the prescribed process has been properly followed. He stated that the appointment process involves shared responsibility at different levels.
37. He stated that the Applicant rendered services at Kopano SSS for approximately two months without being formally employed by the Department. He further testified that Kopano SSS did not have a vacant post and, consequently, could not employ the Applicant on a permanent basis.
38. He further testified that in employing educators on a permanent basis they follow the recruitment policy. Temporary vacancies can be converted into permanent basis if the employment exceeds three months, without going through shortlisting.
39. Under cross-examination he admitted that he met the applicant at Homestead Office after he received the information from HR that the Applicant was not employable.
40. He then talked to the school principal who told him that they had a post at Kopano. He told her that they must advertise as they were given a go ahead to advertise by the district director
41. The application of the applicant was submitted at the district office as they thought they had a post. All posts were filled at Kopano but at another school Masivuye, which was at the verge of being closed because of low enrolment, had a vacancy.

Closing arguments

42. The applicant argued that she was employed to fill a vacant post so that she would be able to teach Physical and Agriculture Sciences when these subjects are introduced by the school in 2027. She argued that she was not employed by the SGB and it was not even involved in the process of her employment.
43. The respondent argued that Kopano SSS has no vacant post and was never informed to advertise and employ any PL1 teacher and that Department of education both district level and province of the eastern cape never advertised and issued bulletin for PL1 posts.
44. The department has an obligation to employ on vacant posts advertised and all administration processes are followed as per policies of government. This could not be done with Kopano SSS because it had no post to be filled.
45. The principal, as per the applicant, informed her that the school had a post and she was given subjects to teach and informed that new subject, Physical Science, will be introduced and will be taught by her. The Circuit Manager informed the applicant that there is no vacant post in Kopano SSS and that as she worked he will advise the SGB to pay their employee. SGB has a right as per SASSA 84 of 1996 to employ and pay SGB employees but could not afford to pay and requested the Department to assist as per the circuit manager’s submission.
46. It was further argued that the department looked for a school with vacant within the circuit (Masivuye PS) and utilized its post to appoint applicant on temporal employment (3months) from 10 March 2026 to 30 June 2026 to allow applicant to be paid for the period employed.
47. Analysis of evidence and arguments
48. 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”.

49. The Applicant’s evidence establishes that she rendered services to the Respondent and that she was remunerated for the services rendered. The fact that she was not recorded on the Respondent’s personnel system does not, in itself, negate the existence of the employment relationship. However, the existence of an employment relationship is not dispositive of the present dispute. The issue for determination is whether the conduct complained of constitutes an unfair labour practice as contemplated in section 186(2) of the LRA.
50. In order for the ELRC to be able to entertain the applicant’s dispute, she must be an employee of the Department of Education. It is not necessary, given the provisions of the LRA, that there be a formal and enforceable contract between the parties However where employment is subject to a suspensive condition e.g. the offer is subject to the District Manager’s written permission to teach, no employment arises before the condition is fulfilled. In such a case were the “employee” to start teaching and the condition is subsequently not met, this is not a dismissal, as the employment is conditional, neither is this an unfair labour practice as the person is not regarded as an employee.
51. She alleged that the Respondent’s conduct was unfair in that she was employed on a three months fixed-term contract, whereas she sought permanent employment. She relied on the WhatsApp advertisement to which she had responded, which described the post as permanent. She further testified that the principal had informed her that she would be permanently employed upon completion of the three-month period.
52. I believe that the issue to be determined is whether the respondent’s failure or refusal by the respondent to employ the applicant permanently constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
53. On the facts before me, the conduct complained of does not readily fall within any of the categories of unfair labour practice contemplated in section 186(2)(a), namely promotion, demotion, probation, training or benefits. The applicant is essentially seeking to have her employment status changed from fixed term to permanent. Section 186(2) does not provide a general mechanism for an employee to obtain permanent appointment. In Hlope v Head of Department: Department of Education KZN and Others (2024) 45 ILJ 805 (LC) the court held that the fact that ‘promotion’ is covered by section 186(2)(a) of the LRA does not, by any means, create a right to promotion. It only implies that an employee (i.e. Applicant for a position) has a right to be fairly considered for a promotion or appointment…which is a right to be treated fairly in the process of promotions or appointments.
54. The applicant’s case is that she seeks permanent employment as she applied for a permanent position but on assuming her duties she was not paid, her name was not captured in the system. The letter of appointment which states that she was on a fixed term contract was given to her a day after conciliation of her unfair labour practice dispute.
55. She further contended that the letter of appointment, which recorded her employment as being on a fixed-term basis, was only provided to her a day after the conciliation of her unfair labour practice dispute. The circumstances surrounding the subsequent termination of her employment do not, however, form part of the dispute referred for determination. The circumstances surrounding the termination of the employment do not alter the nature of the dispute referred for determination, nor does it confer jurisdiction to determine an unfair dismissal dispute that was not referred.
56. It is important to emphasise that the applicant did not apply for, or seek, a promotion in the two months that she was employed by the respondent. Her case is that she applied for a position advertised as permanent and seeks to be employed on a permanent basis. There is therefore no factual basis upon which her claim can be characterised as an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA.
57. It is my considered view that the dispute concerns the nature and duration of her employment and a claim to permanent employment. The dispute does not relate to promotion, demotion, benefits, probation, training. In Jele v Premier of the Province of KwaZulu-Natal and others_(2003) ILJ 1392 (LC) it was held that in deciding whether a dispute involves a promotion one has to compare the employee’s current job with the job or post applied for to determine whether promotion is involved.
58. In the present matter, there is no basis for such a comparison, as the Applicant seeks permanent appointment to the same position in which she was employed. She does not seek advancement from her current position to one of greater status, responsibility or rank that she applied for, which, as held in Jele (supra), are relevant considerations in determining whether a dispute concerns promotion.
59. Based on the above reasons, I am of the view that the applicant has failed to discharge her onus to prove on a balance of probabilities that the respondent committed unfair labour practice.
60. I accordingly make the following award;

Award

61. The applicant failed to discharge the onus that the respondent, the Education Department of the Eastern Cape, committed an unfair labour practice against her.
62. The applicant’s case is hereby dismissed.

Signature:

Commissioner: Thobela Ncetezo
Sector: Education