CASE NUMBER: ELRC 538-24/25 EC
IN THE ARBITRATION
Between
NAPTOSA obo ANIL JUAN HOLLAND APPLICANT
AND
DEPARTMENT OF EDUCATION – EASTERN CAPE 1ST RESPONDENT
NATHAN BERGOOR 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 25, 26, 27 MARCH 2025
DATE AWARD SUBMITTED 12 APRIL 2025
NAME OF PANELIST BONGANI MTATI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at Cradock Education Department offices in Cradock on 25, 26, 27 March 2025 at 09h00. Advocate GD Saayman from NAPTOSA represented the Applicant. Mr T Mlahleni and Mr X Sam as departmental officials represented the First Respondent alternatively, (Department of Education Eastern Cape). Ms N.I Nkuse from SADTU represented Second Respondent, Mr N Bergoor. ISSUES TO BE DECIDED
2. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE

3. This is a promotion dispute involving post volume 2/2024 in the Eastern Cape being the Head of Department (HOD) for Afrikaans post for Michausdal Secondary School.
4. Applicant was teaching in Michausdal Secondaryb School since 2020 as post level one educator and Second Respondent was also post level one educator at Michausdal Secondary School since 2015 and was appointed as HOD in the post question in 2024.
5. After the post was advertised, Applicant, Second Respondent and other candidates applied for the post.
6. The Second Respondent’s appointment was approved by the Department of Education in 2024 to assume duties as HOD for Afrikaans at Michausdal Secondary School.
7. The Applicant initiated his dispute by first lodging a grievance which was set down for hearing and his claim was not resolved.
8. Applicant alleged that she was not appointed despite meeting all the requirements of the post advertised.

SURVEY OF EVIDENCE AND ARRGUMENT
Applicant’s case
Witness: Anil Juan Holland

9. He testified under oath that he was an educator at Michausdal Secondary School who attended interviews for a post of head of department (HOD) for Afrikaans in the presence of the panel and union officials from NAPTOSA and SADTU.
10. He testified that Mr Peters was not in the School Governing Body (SGB) and Mr Versser did not attend SGB training as he attended it being the applicant.
11. He referred to the shortlisting minutes where he stated that Mr Peters from NAPTOSA disclosed to the meeting that he was his uncle.
12. He submitted that one panellist Ms De Reuck had romantic relationship with the incumbent before the employment process started and knew it as he observed them at their school and were always together, but during employment process had no longer in romantic relationship.
13. He stated that the outcomes of the interviews were both ties between himself and the incumbent as they both scored total of 129 points for the interviews,
14. He submitted that had Ms De Reuck not been in the panel, would have won the interviews as he viewed Ms De Reuck was biased towards the incumbent based on their romantic relationship with the incumbent, so influenced and scored in the interviews, which led to the incumbent to win interviews.
15. He submitted that there were six candidates applied for the post according to the shortlisting document submitted to the panel for the post of HOD.
16. He stated that he has Bachelor of Arts (BA) degree, two honours degree, Master of Arts degree and PGCE and incumbent has BED degree.
17. He submitted that the post of HOD required Afrikaans and Management which he viewed himself qualified for the post as he taught it since 2022 at grade 12 with experience of marking grade 12 papers for Afrikaans and the incumbent never taught Afrikaans since he started teaching Afrikaans in 2022.
18. He testified during cross examination that he had also has close relationship with Ms Arnold who was also a panellist in the employment process of the HOD at Michausdal Secondary School and viewed other panellist objective in their scoring.
19. He further admitted during cross examination that the incumbent met minimum requirements of the post and qualified to be shortlisted to the interviews.
20. He further submitted during cross examination that he no longer saying the incumbent has no experience after being referred to the CV of the incumbent indicating that he taught Afrikkans, but maintained during re-examination that he had more experience in teaching Afrikkaans than the incumbent.

Witness 2: Rodney Peters

21. He testified under oath that he was an observer for NAPTOSA during interviews in question and confirmed to have relationship with the applicant and Ms De Reuck advised to step down including herself as they have relationship with other candidates together with Ms Arnold, but Ms De Reuck did not disclose candidates they know including their relationship.
22. He submitted that he advised that teachers with relationship with some candidates should step down voluntarily from the panel, but should not be the issue in the process.
23. He stated that Ms De Reuck and Ms Arnold did not step down as they were advised that there would be no teacher representation in the panel, so they proceeded with the employment process. He viewed that if teachers had relationship with the candidates should have stepped down if was ex-wife, and or romantic relationship.
24. He stated that Ms De Reuck and Ms Arnold were leading arguments in the panel and parent component was almost quiet in the employment process resulting to the incumbent being a preferred candidate in the process.
25. He submitted that after interviews, the panel met and recommended the incumbent as suitable candidate by agreement as candidates are selected based on criterion set, so he viewed panel was correct in agreeing about preferred candidate being the incumbent.
26. He stated that he concluded during the employment process that the process was free and fair, but after interviews realised that it was not fair as he heard that De Reuck had romantic relationship with the incumbent.
27. He stated during cross examination that Ms De Reuck had an obligation to disclose her previous romantic relationship with the incumbent even if had no such relationship during employment process.
28. He further submitted during cross examination that he was not supposed to have stepped down as he was an observer and not a panellist by knowing the applicant.

RESPONDENT’S CASE
Witness 1: Theodore Hockey

29. He testified under oath that he was the acting CMC of the district and was resource person in the employment process of HOD at Michiusdal Secondary School as the principal was absent during the employment process and knew the applicant as he used to notice him when visiting school and doing analysis of results.
30. He submitted that training of SGB was done in order to proceed with employment process of the HOD for Afrikaans at the school and collected shortlisting material from the district to the school to start the process.
31. He submitted one panellist did not attend training and did retraining at school so that they can all be familiar with the employment process.
32. He submitted that Ms De Reuck and Ms Arnold mentioned that they knew some of the candidates and requested to be recused from the panel, but panel and unions agreed that if they generally knew the candidates would not require them to recused from participating in the employment process especially being teacher representatives, as there would be no teacher representation in the process.
33. He stated that questions were drafted and allocated to panellist together with score sheets to start the interviews and during interviews each panellist was scoring to each candidate and scored according to the responses of the candidates to the questions asked.
34. He submitted that at the end of scoring of marks, scores were consolidated to check the most scored candidate to the least candidate for number 1,2,3 for candidate preferences and applicant and incumbent tied with 129 score, where they discussed and agreed that the incumbent be the candidate to be recommended to the district director.
35. He submitted that as resource person was guiding the panel on procedures and not participating as panellist in the employment process, so disputed that he actively participating to influence the employment process.
36. He testified that both incumbent and applicant qualified to be shortlisted as they both met minimum requirements of the post of HOD for Afrikaans.
37. He stated that he had no knowledge of romantic relationship between incumbent and Ms De Reuck (panellist), but knew that there was general relationship between the incumbent and Ms De Reuck and the applicant and Ms Arnold.
38. He disputed that the incumbent never taught Afrikkans as he referred to the application form and CV indicating that the incumbent taught Afrikaans at school.
39. He also disputed that there was bias by the panel in favour of the incumbent as he indicated that scores were very close to each other between the applicant and the incumbent, which he concluded that the panel was objective in their work as applicant and incumbent tied on scores.
40. He stated during cross examination that he had expertise to train panel as he had been the principal of the school undergoing employment processes, knowing employment procedures and had retrained panel of the employment process at school for the post in question
41. He submitted during cross examination that he was not aware that co-option of other teachers is permissible during interviews as he advised Ms Arnold and Ms De Reuck not to step down in the panel.
42. He submitted during cross examination that academic transcript was not a requirement in their criterion, so the incumbent was not required to submit academic transcript, but to submit academic qualifications as required by the bulletin advert to select suitable candidate for the post, so incumbent qualified for the post to be shortlisted.
43. He stated that during the shortlisting meeting Ms De Reuck was chairing the meeting as chairperson was absent and Ms De Reuck was secretary who was asked to chair the meeting of shortlisting.
44. He confirmed during cross examination that the applicant was more experienced than the incumbent in teaching Afrikaans as per their application forms and CVs.
45. He stated during cross examination that he was not aware of any caucus by some panellists about preferred candidate and the letter discussed was never brought to his attention as raised after interviews and further disputed that Ms De Reuck colluded with the incumbent not to produce academic transcript. He further disputed that Ms De Reuck’s failure to disclose her romantic relationship with the incumbent was misrepresentation, but viewed as failure to disclose her specific relationship with the incumbent.
46. He admitted that he was not to allow Ms De Reuck to be a panellist had he been aware that indeed had intimate relationship with the incumbent, but there was no proof to that effect during employment process in question.
    Witness 2: Shamayn De Reuck
47. She testified under oath that she was teaching at Michausdal and SGB member who was a panellist in the employment process in question and the applicant was his colleague who was also schoolmate during their times of being scholars.
48. She submitted that the SGB members were trained and elected the panel to proceed with employment process where interviews were held and selected preferred candidate from three candidates interviewed for post recommendation to the district as agreed in the ratification meeting of the SGB.
49. She submitted that some panellists that were absent during the training were also trained in the selection committee meeting to prepare them for the employment process in order to perform well in the process.
50. She stated that during selection meeting of the panel, the SGB chairperson refused to chair the meeting and was appointed to chair the meeting provisionally and indeed chaired shortlisting meeting.
51. She testified that the outcome of the interviews was having tie which the panel resolved through engagement and agreement for the incumbent to be a preferred candidate to be recommended to the district suitable for the post of HOD Afrikaans.
52. She stated that during the interviews they realised that they knew some candidates and requested to recuse themselves as herself and Ms Arnold, but advised not to recuse themselves and agreed by the panel to stay as panellists in the process including Mr Peters as an observer who was related to the applicant
53. She disputed knowing the incumbent as having romantic relationship with him, but admitted knowing him as a colleague generally.
54. She submitted that as panel crafted their criterion based on the bulletin requirements of having Afrikaans as major subject and management, qualifications, experience and references and both applicant and incumbent met requirements.
55. She disputed testimony that the incumbent never taught Afrikaans as indicated in his CV and application form, but applicant is more qualified than the incumbent and incumbent more experienced than the applicant. She further stated that academic transcript was not part of their criterion for selection.
56. She disputed that she was biased towards the incumbent as her scores were almost similar to other panellists, so scores were almost the same results even in her absence and further denied having intimate relationship with the incumbent and viewed process of employment process fair.
57. She stated during cross examination that the incumbent taught Afrikaans in grade 11, but not teaching it now.as the incumbent is the grade head, but his subject specialisation is Afrikaans.
58. She testified during cross examination that the letter that was read after interviews was not related to the employment process as was related to the issue of non-teaching staff for the vote of no confidence to their representative in the SGB.
59. She denied during cross examination that she had relationship with the incumbent and never break incumbent’s relationship with Valentine that could have led to be biased towards the incumbent in the process and stated that the incumbent was recommended based on his performance.
60. She further disputed during cross examination that she was dominant in the employment process in order to influence for her lover to be a preferred candidate, but the panel decided about their preferred candidate and not herself.
61. She further confirmed that the CV of the incumbent was not showing him teaching Afrikaans, but his application form showed him taught Afrikaans.
62. She further testified during cross examination that they were mandated by the panel to call references of the candidates to confirm their personal information in their CVs and forms as emphasised in the training to make references for the candidates, so disputed that she initiated references for the incumbent as had no academic transcript and had no romantic relationship with the incumbent,
63. She further disputed that her tattoo was sign of love to the incumbent, but was a sign of her membership to Christianity and never had love with the incumbent.

SECOND RESPONDENT’S CASE
Witness 1: Nathan Bergoor

64. He testified under oath that he taught at Michausdal Secondary School since 2015 in charge of Afrikaans and head of other subject and involved in other school committees.
65. He disputed that the applicant was better qualified than him based on Afrikaans as a requirement and had started teaching Afrikaans before the applicant started teaching Afrikaans at school as he taught Afrikaans in 2015 and 2016 graded at grade 11 and changed by school management team to teach other subjects.
66. He submitted that she knew Ms De Reuck as a colleague and denied having or had romantic relationship with her and his performance during employment process was based on his responses and not to panellist De Reuck.
67. He stated that his qualifications are grade 12 with Afrikaans as home language and BED specialising in languages with Afrikaans as major subject as was referring to his CV and application form for the post of HOD.
68. He submitted that he submitted his degree certificate as was required in the bulletin and not academic transcript as per the advert and disputed that academic transcript is qualification.
69. He stated during cross examination that he knew Valentine as he had child with her, but denied had intimate relationship with Ms De Reuck andMs De Reuck had never drove his motor vehicle or parked his car at De Reuck’s place, as he is always driving his car and not by De Reuck.
70. He further disputed that he ever drove De Reuck’s car and resulted into him getting favours for the post from Ms De Reuck as a panellist.
71. He further admitted that the applicant was more qualified than him including experience in teaching Afrikaans, but stated that he was more experienced in teaching than the applicant, but stated both met minimum requirement of the post
72. He further submitted during re-examination that he was involved in management of subjects as he was a leader of those subjects.
    ANALYSIS OF EVIDENCE AND ARGUMENT
73. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
74. I have considered the relevant legislations, departmental guidelines for sifting, shortlisting, interview procedures, post requirements, as well relevant case law.
75. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”. In this case unfair labour practice involves promotion.
76. I have to decide whether the Respondent acted fairly or not in not appointing the Applicant in the position of the HOD Michausdal Secondary School.
77. I start by considering procedural fairness in the promotional employment process of the HOD for Afrikaans at Michausdal Secondary School.
78. As this is a departmental head promotional post, in terms of the PAM regulations the role of the departmental officials as resource persons is to assist the school governing body, towards the appointment of qualifying school management by giving control to manage appointment processes. The resource person will be responsible to ensure that capacity building sessions is conducted with the interview committee to enhance its understanding of the selection and interview processes.
79. In this case SGB members together with interview panel were trained by the First Respondent to conduct the employment process as per the prescripts of the employment policies of the First Respondent and Mr Hockey from the first respondent was a resource person who assisted the panel by guiding them and retrained the panel during shortlisting as testified by himself and corroborated by Ms De Reuck.
80. Considering testimony that panellist De Reuck had romantic relationship with the incumbent that led her to be biased towards the incumbent as preferred candidate to be recommended for the post of HOD Afrikaans. I find that there was no romantic relationship between the incumbent and Ms De Reuck as denied by Ms De Reuck and the incumbent with further admission by the applicant that during interviews were no longer have intimate relationship, so l view that there was no bias from De Reuck in scoring for the incumbent as all other panellist scored similarly close to each other and resulted into tie between the incumbent and applicant as testified by Mr Hockey and corroborated by Ms De Reuck with further testimony of the applicant that panel was objective in doing their work except panellist De Reuck.
81. Considering criterion used by the panel to conduct their recruitment, l find that they used proper criterion based on the criterion set in the bulletin as qualifications, experience, references, application forms and performance in the interviews as testified by Mr Hockey and corroborated by Ms De Reuck and the incumbent. I reject evidence that the academic transcript was a requirement for shortlisting as testified by the applicant and disputed by Ms De Reuck and Mr Hockey.
82. Considering substantive fairness, I find that the Second Respondent’s appointment was fair as both candidates qualified to be appointed in the post of HOD for Afrikaans at Michausdal Secondary School as they both met minimum requirements of the post, both candidates had Afrikaans as major subject and minimum experience as educators. I find based on the outcomes of the interviews that both applicant and incumbent tied in scores by 129 marks and panel discussed and agreed on their preferred candidate to be the incumbent. I reject evidence that the incumbent never taught Afrikaans as he taught it in 2015 and 2016 with further being head of Afrikaans at school as testified by the incumbent and corroborated by Ms De Reuck and Mr Hockey.
83. Therefore, l find that there are no biased and insubstantial reasons based upon any wrong principle in employment process of the Second Respondent and further find that the Applicant has not proved that she was the preferred candidate applied for the HOD post at Michausdal Secondary School.
84. .” To determine if the failure to promote the employee was unfair the court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair”. In this case l view the appointment of the incumbent was procedurally and substantively fair as preferred candidate recommended by the panel and certified by union observers through their declarations that recruitment process was free and fair as testified by Mr Peters, and corroborated by SADTU declaration form, Mr Hocky and Ms De Reuck. So I conclude that the Applicant failed to convince and prove on a balance of preponderance that the employment process was unfair to him as conducted by the first respondent.
85. The Applicant bears the onus to prove that the Respondent committed unfair labour practice relating to promotion and furthermore that there was some form of unfair conduct on the part of the First Respondent during the promotion process and such unfair conduct constituted an unfair labour practice and he is entitled to the relief he sought, so l find that the applicant failed to prove unfairness of his promotion to the post of HOD Afrikaans at Michuiusdal Secondary School.
86. Based on the evidence before me, I find that the Applicant failed to discharge the onus on a balance of probabilities placed on him to prove that he was the best candidate and to set aside the employment process of the Second Respondent and be placed in the position of the incumbent of the promotional post of HOD for Afrikaans at Michausdal Secondary School.
87. I find that the First Respondent committed no unfair labour practice to the Applicant based on the reasons highlighted above. In the result, the appointment of the Second Respondent into the position of HOD at Michausdal Secondary School to be sustained and stand to be confirmed that the 2nd Respondent is the HOD for Afrikaans at Michausdal Secondary School as approved by the 1st Respondent as incumbent signed assumption of duty to start his duties as departmental head of Michuisdal Secondary School.
    AWARD
88. I find that the First Respondent did not committed unfair labour practice relating to promotion as intended in section 186 (2) (a) of the LRA and the applicant failed to prove that the appointment of the incumbent as the departmental head for Afrikaans at Michausdal was unfair. Signature:

Commissioner: Bongani Mtati
Sector: Basic Education