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22 April 2026 – ELRC972-25/26EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN GQEBERHA

Case No: ELRC972-25/26EC

In the matter between

SADTU obo NB Manqana Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: AW Howden

HEARD: 8 April 2026

DATE OF AWARD: 22 April 2026

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair conduct relating to promotion.

ARBITRATION AWARD

DETAILS OF PROCEEDINGS AND REPRESENTATION

  1. The dispute was scheduled for Arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (As Amended 25 July 2023). The arbitration commenced on 11 February 2026 and was concluded on 8 April 2026 at the offices of the Department of Education – Eastern Cape in Gqeberha.
  2. The Applicant, Ms NB Manqana, was present and was represented by Mr B Stali from the South African Democratic Teachers Union (SADTU).
  3. The Respondent, Department of Education – Eastern Cape, was represented by Mr S Kralo from the Labour Relations Department.
  4. On the final day the parties requested that the Closing Arguments be submitted in writing. It was agreed that the parties would submit the written Closing Arguments simultaneously on 15 April 2026, before close of business.
  5. The Closing Arguments for both parties were received timeously and were taken into consideration when finalising the award.

ISSUES IN DISPUTE

  1. This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the Respondent committed an Unfair Labour Practice by not sifting in the Applicant and if so, grant the necessary relief.

BACKGROUND TO THE DISPUTE

  1. The Applicant, NB Manqana, is employed by the Respondent as a PL 1 Educator at the Nxanelwimfundo Primary School in Motherwell.
  2. The Applicant applied for the promotion post of Departmental Head PL 2 at the same school as advertised in Bulletin Volume 2 of 2025 Post No 649.
  3. The Applicant was not sifted in at the Sifting Process as the Applicant had allegedly not met the minimum requirements of the post.
  4. The Applicant seeks compensation.

SURVEY OF EVIDENCE AND ARGUMENT

  1. It is common cause between the parties:
  • That the Applicant was appointed by the Respondent in 2008 as a PL 1 Educator at Nxanelwimfundo Primary School.
  • That the Applicant currently earns a basic salary of R35 248.00 per month.
  • That the Applicant applied for the position of Departmental Head on PL 2, at the same school, as advertised in Bulletin Volume 2 of 2025 Post No 649.
  • That the Applicant was not sifted in during the Sifting Process as the requirements, as advertised for the post, are a qualification for the Intermediary Phase for Maths/English – first additional language and isiXhosa – home language.
  • That the Applicant has been at the same school for approximately 16 years as a teacher for the Intermediary Phase pupils.
  • That the Applicant has a Higher Diploma in Education for high school pupils. (Further Education and Training [FET]).
  • That the Applicant seeks compensation for the alleged unfair labour practice.
  1. The issue(s) in dispute is whether the Respondent committed an unfair labour practice by not sifting-in the Applicant during the Sifting Process. Further to the issue(s) in dispute the Applicant’s Representative raised the issue of consistency with regards to the standard applied during the sifting process and named two comparators.
  2. The Respondent handed in a Bundle of documents. (Respondent Bundle). None of the documents were in dispute and it was agreed that the documents’ contents were what they purported to be.
  3. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

  1. The crux of the Applicant’s matter is that she should have been sifted in during the Sifting Process and given an opportunity to compete for the position, as she has the required qualification and experience, as she has been at the school for approximately 16 years teaching the Intermediate Phase pupils, even though she has a FET qualification.

The Respondents’ Submissions

  1. On the day, the Respondent’s Representative stated that he was handicapped, as the witness from HR was not available due to working from another venue, as the department did not have any electricity. Thereby indirectly requesting a postponement of the matter. The request was denied as the matter had been set down more than a month prior to the set down date and the necessary witnesses should have been arranged timeously.
  2. On the day the Respondent’s Representative further stated that he would not be calling any witnesses and closed the Respondent’s case.
  3. The crux of the Respondent’s matter is that the Applicant did not qualify for the position as she had an FET Phase qualification and not an Intermediate Phase qualification, even though she was currently teaching the Intermediate Phase pupils.
    ANALYSIS OF THE EVIDENCE AND ARGUMENT
  4. Section 186 (2) (a) of the LRA states:
    “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving – 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.”
  5. It is basically common cause that the position was advertised by the Respondent with the basic requirement being: A three or four year qualification which must include a professional teacher qualification and three years actual teaching experience. Plus, the position was advertised with the following Learning areas of: Maths/English – First Additional Language and isiXhosa – Home Language.
  6. During cross-questioning of the Applicant’s Representative, the Respondent’s Representative referred to the PAM (Personnel Administrative Measures – 2022) document stating that due to the Applicant having an FET Phase Qualification she did not meet the requirements of the advertised position. (Specifically referring to Clause 3.2.1.1 School based Educator).
  7. Where it is mentioned under: General Classroom Teacher: Functional Fields: “Basic knowledge of subject/programme/phase* as provided for in the professional qualification”. While under School-based Educator: Manager: Departmental Head the Functional Field only refers to “Advanced knowledge of teaching as provided for in the professional qualification”. (* Emphasis added)
  8. Had the Applicant applied for a Teacher’s position at a Primary School, then this requirement would be applicable, as the Applicant has a FET Phase qualification. The Applicant however applied for a Departmental Head position and no such requirement is placed on the Applicant for this position. The Respondent’s statement therefore stands to fail.
  9. The position was advertised with the following Learning areas:
    Maths/English – First Additional language and isiXhosa – Home Language.
  10. In the Applicant’s Application Form (Bundle page 14) the Applicant stated that her qualification had the following specialisation areas: isiXhosa/English/Natural Sciences and Computer Literacy.
  11. In the Applicant’s Application Form (Bundle page 15) the Applicant stated that she currently teaches the subjects: isiXhosa/Life Skills/Arts and Culture and Computer.
  12. In the Applicant’s Curriculum Vitae (Bundle page 30) the Applicant stated that her major subjects for her tertiary qualification were: isiXhosa/ Biblical Studies and Natural Sciences. This is confirmed in the Applicant’s statement of Results (Bundle pages 20 to 22).
  13. The Applicant had not done Mathematics during her school career or during her tertiary qualification. Further there is no indication that the Applicant has ever taught Mathematics.
  14. While the Applicant had done Language Communication: English on a second year level, there is no indication that the Applicant has even taught English – First Additional language in her career as a Teacher.
  15. The Applicant did not meet the minimum requirements for the post with regards to the Learning areas required and therefore could not have been sifted in.
  16. The Applicant raised the issue of consistency and provided the names/positions of two comparators. The principle behind consistency is that the circumstances must be the same or similar in nature. No evidence was lead during these proceedings, however it is assumed that the two Principals mentioned by the Applicant were appointed at Primary Schools while having qualifications for high school (Senior or FET Phase).
  17. The same principle as mentioned in paragraphs (22 and 23) above would be applicable as the Functional Field for a Principal reads as follows: “Good knowledge of teaching as provided for in the professional qualification”. There is no specific requirement for a Primary School (Foundation or Intermediate Phase) qualification mentioned.
  18. In his Closing Arguments the Applicant’s Representative mentioned the names of another two comparators. Under normal circumstances this would not be taken into consideration as the Respondent was never given an opportunity to rebut the submissions. I however feel that the same principle as mentioned in paragraphs (22 and 23) above would be applicable as the Functional Field for a Departmental Head does not require a specific qualification for a Primary School.
  19. It is therefore my finding based on the above, the submissions of the parties and on the balance of probability, that the Respondent has been consistent in the applications of the standard applied during the Sifting Process.
  20. Taking into consideration all the above and on the balance of probability, it is my finding that the Respondent had not committed an Unfair Labour Practice by not sifting-in the Applicant during the Sifting Process.
  21. I therefore make the following award:

AWARD

  1. The Applicant, NB Manqana, has failed to prove that the Respondent, the Department of Education – Eastern Cape, committed an Unfair Labour Practice relating to promotion in terms of Section 186 (2) (a) of the LRA.
  2. The Application is dismissed.

Panellist: Anthony Walter Howden
ELRC