22 October 2026 – ELRC448-26/27EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KOMANI

Case No ELRC 448-26/27EC

In the matter between

NAPTOSA obo Mdolo Nosisa Applicant

and

Department of Education: Eastern Cape Respondent

ARBITRATOR: Simphiwe Ndzundzu

HEARD: 23 September 2026

CLOSING ARGUMENTS: 23 September 2026

DATE OF AWARD: 21 October 2026

SUMMARY: Interpretation and Application of Collective Agreement

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

This matter was scheduled for arbitration at Komani Education building on 23 September 2026.
The Applicant Nosisa Mdolo was present and represented by Aaron Mhlontlo from NAPTOSA. The Respondent was present and represented by Z.E Sondlo.
I am satisfied that the CCMA has the requisite jurisdiction contemplated in section 138 of the Labour Relations Act, No. 66 of 1995 (the LRA) to arbitrate the dispute.
Both parties submitted closing arguments and I have taken them into consideration. The proceedings were both manually and electronically recorded.

THE ISSUE IN DISPUTE

I am required to determine the interpretation and application of collective agreement 1 of 2024.

THE BACKGROUND TO THE DISPUTE

The applicant was employed in 2016 as co-opted member of the School Management Team and her remuneration was R5 587.32.
It was common cause that the applicant was shortlisted and interviewed. The SGB ratified a recommendation following the interviews. The applicant’s complaint is that the Department subsequently cancelled the process and re-advertised the post instead of finalising the existing recruitment process.
She sought a declaration that the action was improper and an order directing the Department to finalise recruitment.

SURVEY OF EVIDENCE AND ARGUMENT
Applicant evidence
8. The applicant maintained that the withdrawal occurred after the recruitment stages at which clause 1.7 prohibited withdrawal. Clause 1.7 of the guidelines for advertising and filling of Educator posts at institutions provides that the Head of Department or delegated authority will only have powers to withdraw the advertised post before the processes of shortlisting and interviews starts and after considering submissions made by the District Director.

She stated that the SGB had already ratified the recommendation and then the Circuit Manager subsequently communicated the cancellation.
She relied on the dates of the withdrawal request dated 1 June 2026 and cancellation letter dated 3 June 2026 to demonstrate that the Department acted after interviews and recommendations had been made.
She acknowledged the school’s status as an agricultural focus school. She also confirmed that the Circuit Manager held a meeting with the SGB to cancel the recruitment process.
In closing, the applicant accepted that the Department had a power to withdraw a post, but submitted that the power was constrained by clause 1.7. She argued that the Department had acted outside the permitted timeframe and that the SGB recommendation should be processed.

The Respondents Submission’s

The respondent contended that the District Director considered the recommended candidate unsuitable for the requirements of a focus school and that the Head of Department approved the District Director’s decision. He relied on clause 8.3 which provides that where the HOD or the delegated authority declines the SGB recommendation he must provide full motivation or call a meeting with SGB to discuss the rejection of the recommendation.
The Circuit Manager, Sindiswe Tshele testified that Abambo is a focus school specialising in Agricultural Science. Its principal should possess expertise relevant to that focus school. She explained the respondent shared information about management criteria was shared with the SMT and SGB.
Ms Tshele acted as a resource person during recruitment. She testified that the Department could decline an SGB recommendation. The SGB should identify a person with experience appropriate to the school. Her evidence emphasized the need for a principal who met the school’s requirements.
Ms Tshele confirmed that the SGB chairperson had signed the recommendation and that she had also signed it. She referred to a memorandum from the District Director intended to remind the SGB of the requirements of the school’s manager. She did not answer the proposition that the District Director had neither signed nor declined the recommendation.
Ms Tshele conceded that no letter was delivered to the school within 14 days. She subsequently delivered the letter herself on 22 June 2026. She confirmed that the post was withdrawn on 3 June 2026, after the recruitment stages already finalized, and expressly accepted that the Department had not complied with clause 1.7.
She also stated that there had been discussions with the SGB and that a meeting dealing with rejection was minuted. She further stated that the SGB indicated that it would not participate in the recruitment of the principal.
The respondent argued that its actions served learners’ interests, that the correct candidate had to be identified, and that the school should function consistently with its agricultural focus.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
Section 24 of the Labour Relations Act provides a mechanism for resolving disputes about the interpretation and application of collective agreements.
In AMCU and others v Royal Bafokeng Platinum Ltd and others In this matter the Employer entered into a retrenchment agreement. The Labour Appeal Court held that collective agreements are given priority; this is so because collective bargaining is essentially geared towards concluding a collective agreement. Collective agreements are so important in the scheme of the Act that they are allowed to trump the provisions of the Act.
Therefore, both parties are bound by the terms and conditions concluded in respect of the Collective Agreement.
In this matter the facts are substantially undisputed that is the shortlisting and interviews took place, an SGB recommendation followed, and the respondent then withdrew the post. Ms Tshele’s concession supports this sequence and the applicant’s case.
The respondent terminated an existing process and proposed changing the profile for a fresh advertisement. That action falls within the withdrawal limitation in clause 1.7 of the Collective Agreement.
The respondent’s witness Ms Sindiswe Tshele indicated that no candidate possessed both Mathematics and technical skills but most had Mathematics including the applicant. She also stated that the candidates forwarded to the school met minimum requirements and that she assisted in shortlisting suitable candidates for interview.
The applicant relied on the withdrawal request dated 1 June 2026 and the cancellation letter dated 3 June 2026. Ms Sindiswe Tshele confirmed that the Department acted after the interviews and recommendation and conceded that clause 1.7 had not been complied with.
The respondent’s explanation was that the District Director considered the recommended candidate unsuitable for the particular requirements of the school and that the Head of Department approved the decision. Ms Tshele testified that Abambo is an agricultural focus school and that its principal should possess experience and expertise appropriate to that school. The applicant acknowledged the school’s agricultural status. The concern advanced by the respondent was therefore connected to the requirements of the institution.
Clause 8.3, as presented in these proceedings, requires the Head of Department or delegated authority to provide full motivation or convene a meeting with the SGB to discuss the rejection. Ms Tshele testified that discussions took place with the SGB and that a meeting dealing with the rejection was minuted. The applicant also confirmed that the Circuit Manager met with the SGB concerning the cancellation. Considered together, this evidence supports the respondent’s contention that the recommendation was discussed with the SGB rather than simply disregarded without engagement.
I have considered Ms Tshele’s concession that no letter was delivered to the school within 14 days and that she delivered it on 22 June 2026. I have also considered her failure to answer the proposition that the District Director had neither signed nor declined the recommendation. These shortcomings weaken the respondent’s account of the administrative handling of the decision. They do not establish that the recommendation became binding or that the power under clause 8.3 ceased to exist. The wording of clause 8.3 placed before me provides for a meeting as an alternative to full motivation, and the evidence supports the occurrence of such engagement.
On balance, I accept the respondent’s characterisation of the substantive decision as a rejection of the SGB recommendation on grounds relating to the school’s particular requirements.
A genuine withdrawal remains subject to clause 1.7, while a rejection of a recommendation must satisfy clause 8.3. The applicant’s reliance on the timing of the decision does not establish that the latter power was unavailable.
Accordingly, I find that the applicant has not established that the respondent’s rejection of the recommendation contravened the collective agreement on the basis alleged. The completed shortlisting, interviews and SGB recommendation did not oblige the Department to accept that recommendation. The applicant’s claim therefore fails, and the dispute is determined in favour of the respondent.