Case Number: ELRC 189-25/26 EC
Panelist: Lungile Matshaka
Date of Award: 21 October 2025

In the ARBITRATION between

NAPTOSA obo LUXOLO NGEMNTU

(Applicant)

And EASTERN CAPE DEPARTMENT OF EDUCATION

(1st Respondent)

SADTU obo SYDWELL COMBI

(2nd Respondent)

DETAILS OF THE HEARING AND REPRESENTATION

1. This is an award following an arbitration hearing held on the 7th August 2025, 2nd & 3rd of October of 2025 involving the Applicant, NAPTOSA obo Mr. L Ngemntu, represented by Mr. A Mhlontlo, union official, whilst the First Respondent, Eastern Cape Education Department, was represented by its Labour Relations Manager, Mr. T Mlahleni. The Second Respondent, SADTU obo Mr. S Combi, was represented by Ms. K.N. Ntshinka-Jim union official.
2. The proceedings were digitally recorded, and witnesses gave evidence under oath.
3. The parties requested and were enabled to submit closing arguments by the 13th October 2025.

ISSUES TO BE DECIDED

4. I am required to decide whether or not the Respondent committed an unfair labour practice in not letting the Applicant go through the sifting stage of the appointment process of the Principal’s position.

BACKGROUND AND SURVEY TO THE ISSUE

5. The first respondent advertised a post through open bulletin Volume 2 of 2024 and both the applicant and the second respondent applied for the position of Principal which are all P4. The applicant at the time was employed as the departmental head on level 2. He was not shortlisted, whilst the second respondent, Mr. Combi was shortlisted and went for the interviews and scored no 1. The second respondent was recommended by the panel and appointed to the post in dispute. The applicant lodged a dispute of an unfair labour practice citing certain issues detailed below:

(a) The incumbent was supposed to have been sifted in as his form was incorrectly filled;

(b) Sifting was never done by the department;

(c) The applicant was prejudiced at the shortlisting stage when candidates who were sifted out and were sifted in even though their forms were incorrectly filled and not completed;

(d) The first recruitment process was never nullified by relevant authority;

(e) The panel was never properly constituted;

(f) The SGB did not make a recommendation of at least 3 candidates and submit to the department of education; and

(g) The selection committee was biased towards incumbent.

6. The applicant as alleging unfair labour practice was given a chance to discharge onus of proof first and in proving, as indicated above, he was made to go through the application of the incumbent and alleged that he should not have been shortlisted because he wrote N/A where he is required to write NQF level. The applicant argued that the form was incorrectly filled and panel should have not shortlisted the incumbent based on this.
7. In proving no (b), the applicant alleged that sifting was never done by the department. However, it was put to the applicant to identify the sifting sheet as contained in page 52 of the respondents’ bundle and he indicated as such. It should be noted that the documents were received by the applicant’s representative because he asked for the candidates or documents of the previous annulled recruitment process. Also, the same documents i.e. application of Mrawuli and Mr. Kulata were part of the grievance lodged by NAPTOSA and Mr. Mhlontlo represented Kulata.
8. Most significantly, it should be noted that the applicant was not shortlisted based on non-completion of his form but failed to have necessary experience when the bar was raised in terms of looking at the experience. Applicant was found to have 8 (eight) years teaching experience far less than other shortlisted candidates including the second respondent.
9. The second respondent applied for the same Principal’s post as advertised by the first respondent and he was shortlisted, interviewed and was appointed after having met all requirements of the first respondent. The witness of the first respondent led evidence wherein he performed well and was scored number one (1) by the panel whereas the applicant has eight (8) years teaching experience whilst the incumbent has 17 years teaching experience as already stated above.
10. The issue raised in (d) becomes irrelevant for the present process because it did not lead to the appointment of the second respondent, as that process was nullified as having no bearing in the present application by the applicant
11. In dealing with point (e) the applicant was led to say that the panel that conducted shortlisting was not legitimate in the sense that the panel selected for previous process was not disbanded.
12. In dealing with point (f) the applicant was led to say that SGB did not recommend and put the candidates in order as they performed and submit to the department as required by the PAM document. The evidence of the applicant was challenged and exposed as fallacious.
13. In dealing with (g), the applicant was led to compare the scores and difference that was said to be in its highest. However, when it was pointed to the representative that it was not correct to compare scores of the previous process with the second process because only three panelists scored in the second process.
14. It is further important to note that from above the employer made decision to appoint the second respondent in line with the best interests of the children and public by providing a Principal with the necessary skills, expertise and experience for the job. ANALYSIS OF EVIDENCE AND ARGUMENT
15. As a point of departure, the ELRC’s guidelines referred to as Collective Agreement No. 3 of 2016 in relation to promotion disputes, stipulates that when deciding whether the procedure conducted involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should make a finding of unfairness.
16. Where the applicant is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice, he or she should generally, demonstrate that there was a conduct that denied him/her fair opportunity to compete for the post or conduct that was arbitrary or motivated by unacceptable reason or that the successful candidate was dishonest and misled the panel and employer.
17. In the above regard, witness of the first respondent testified that there is no single instance in terms of issues raised above which have been committed by the first respondent. The result of panel scored candidates according to how they performed in the interviews whilst the applicant never went through the shortlisting stage because he did not meet the fair criteria set by the panel. This shows that the best tool used and available (criteria) did not favour the applicant and this means that the applicant failed to prove that he was the best candidate or barred to compete unfairly.
18. The second respondent applied for a Principal’s post as advertised by the first respondent and he was shortlisted, interviewed and was appointed by the first respondent having met all requirements of the first respondent. The witness of the first respondent led evidence that Mr. Combi met the minimum requirements of the post and he went for interviews wherein he performed well and was scored number one (1) by the panel whereas the applicant because of the minimal experience was not shortlisted. It should be noted that the applicant has 8 years teaching experience whilst the incumbent has 17 years teaching experience. Furthermore, the witness of the first respondent testified that the department made a right choice by appointing the second respondent because the results went up when he took the reins of power at the school.
19. In Observatory Girls Primary School & another v Head of Department of Education, Province of Guateng, Case No. 02/15349[2006] JOL 17802 (W) it was held that:

“The question then arose whether the multitude of applicable laws and regulations which prescribe the procedure to be followed in the appointment of new teachers were peremptory or merely directory. In either event, the first question arose whether the exact compliance was required or merely directory. In either event, the first question arose whether the exact compliance was required or whether substantial compliance was sufficient. Accepting for present purposes, that the prescribed procedure was peremptory, strict compliance was not necessary. All that was called for was substantial compliance. Held further, that the procedure that the school had followed fully achieved the purposes of the legislation of ensuring that there was fair and transparent procedure in place for appointing teachers to fill vacancies”

20. This means that strict adherence in PAM documents stipulations is not necessary or may not render the process unfair.
21. In conclusion, I have noted that in Ngcobo v Standard Bank of SA & Others (D439/12 [2013] 33, the Court held that “where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for the post, or conduct that was arbitrary or motivated by an unacceptable reason…”
22. The Labour Appeal Court in Noon v SSSBC and Others [2012] 33 ILJ 2597 (LAC) endorsed a view that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post.
23. In the applicant’s case, I am satisfied that teaching experience of 8 years as opposed to 17 years of the incumbent denied him an opportunity of competing for the Principal’s position.
24. In the light of the above exposition and in my own sense of fairness and justice, I do not find that the first respondent committed an unfair labour practice by not observing the applicant’s teaching experience which had become a crucial factor in the selection process for the appointment of a suitable candidate. The applicant has failed to discharge his onus of proof beyond a balance of probabilities that the first respondent committed unfair labour practice towards him.

AWARD

25. The applicant’s claim is dismissed.