23 June 2025 2025 – ELRC1426-24/25LP

IN THE EDUCATION LABOUR RELATION COUNCIL
Case Number – ELRC 1426-24/25 LP
PANELLIST: MMAKGARE SHAI
DATE : 16 JUNE 2025
IN THE MATTER BETWEEN
BALOYI MS APPLICANT
And
LIMPOPO DEPARTMENT OF EDUCATION RESPONDENT
ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

The matter was heard on the 28th of May 2025 at the Department of Education, Corner Hospital and Hans Van Rensburg Street, Polokwane.
Both parties were present. Mr. Nyathela N E represented the respondent, whereas Mr. Ordney Mathebula represented the applicant.
At the end of the hearing, both parties were asked to submit closing arguments and same were taken into account herein.
The proceedings were digitally recorded.
ISSUE TO BE DECIDED
I am called upon to determine whether the respondent had committed unfair Labor practice by not appointing the applicant on an advertised post. If I find that the respondent has committed unfair Labor practice, I will determine an appropriate remedy for him.
BACKGROUND TO THE ISSUE
The applicant was employed as a temporary teacher at Khomisani Primary School. A post of temporary teacher replacement post 30 was advertised. He applied for the position and got recommended by the School Governing Body. However, the HOD appointed someone else in the position, thereby disregarding the school governing body’s recommendations.
The applicant challenged the conduct of the 1st respondent procedurally in that the HOD disregarded the recommendation of the school governing body, and substantive on the basis that the applicant was the best candidate of all the candidates.
The respondent contended that its conduct was fair both procedurally and substantively. It contended that the applicant was not appointed because he did not meet the minimum requirements of the position.

SURVEY OF EVIDENCE FOR THE APPLICANT
SOYAPHI MUWIS BALOI TESTIFIED UNDER OATH AS FOLLOWS

He applied for a temporary teacher’s post 30 at Khomisani primary School. He was shortlisted and interviewed and got the highest score. The school governing body recommended him for appointment.
The HOD appointed another person instead, ignoring the recommendation of the school governing body.
The principal of Khomanani Primary school informed him that on enquiry why he was not appointed, he was informed that it was because he had post graduate certificate in education instead of Bachelor of education degree. He was further told that Mr. Sono, the district Manager had told the principal that the district does not employ teachers with PGCE. He wondered how that could be because he was employed at the same school as a teacher on the basis of his PGCE.
There are two ways of qualifying as a teacher, namely: a four-year Bachelor of Education degree, BED, a three or four year Bachelor’s degree, followed by a one year post graduate certificate in education (PGCE). He followed the later one, specializing in intermediate phone. His PGCE shows that he can teach both English and Tsonga.
The advert required a teacher qualified to teach English Grade 4-7. He qualified because he possessed one course in English and one course in African language.
He was not shortlisted by mistake as he met the minimum requirements, he was interviewed and recommended.
HE TESTIFIED UNDER CROSS EXAMINATION AS FOLLOWS:
He confirmed that he was told that the reason he was not appointed was because he had only PGCE. He had no answer when challenged that a witness would come to testify that teachers with PGCE had been employed by the respondent.
He admitted that he did not have English one to three. When it was put to him that the post required a person who was competent in English, thus a person must have English up to course three level, he insisted that he is competent even if he did one course in English. He admitted that in his PGCE studies he did not learn how to teach his major course being English. He further admitted that English is not one of his majors.
He insisted that even if the post 30 is no longer available, he needed to be compensated.
SURVEY OF THE RESPONDENT’S EVIDENCE
MR SAM NYOKO SONO TESTIFIED UNDER OATH AS FOLLOWS
He is employed by the respondent as a deputy director, corporate services which include provisioning, advising on staff appointments.
Looking at the advert, the minimum requirements would be twofold:
 3-year diploma, and a major in English
 4-year degree, and a major in English
 The post required a person who is competent to teach English grade 4-7. The said candidates must have completed three years study in English, as a major.
The applicant’s qualifications as contained at page 23-24 of bundle R, shows that he did only one course in English. According to him, the applicant should not have been shortlisted or interviewed, as he did not meet the minimum requirements being English course one to course three.
Pages 52-53 contain the statement of results of one Petunia Ndala, the appointee to the post. She met the requirements of the post. Page 53 shows that she did teaching English first additional language. The code TMN 3702 meant that she majored in the course (English). She further majored in natural sciences and home language being Tsonga.
Post no 30 no longer exists due to shrinkage of the student’s body. Further that it is not true that the respondent does not appoint teachers with PGCE, this certificate is guided by the degree a person did. Since the applicant majored in sociology and criminology he is not appointable. According to him, the certificate should not have been issued. According to the document, the applicant can teach Tsonga and English according to Unisa but in terms of the respondent‘s policy, he is not appointable. For him to be appointable to teach English as per advert, he should have majored in English.
He did however admit that this requirement is not clear in the advert. However, he insisted that the panel should have enquired if he majored in English before they recommended him. Further that he was wrongly shortlisted to start with.
ANALYSIS OF EVIDENCE AND ARGUMENTS
In this matter, the respondent advertised a vacant temporary substitute post no 30 at Khomisani Primary school. The requirements of the post were couched as follows:
“Post no: 30
Curriculum: English grade 4-7
The interested person had to attach the following:
• A comprehensive CV
• Certified Id copy
• Certified copy of SACE certificate
• Two recent testimonials
The applicant applied for the post, shortlisted and interviewed, ranked number 1 by the interview committee and was recommended as a preferred candidate by the school governing body.
The applicant was not appointed by the respondent because he is not properly qualified to teach in ordinary public and does not meet the curriculum needs of the post. The applicant however disputes this.
It is common cause that the applicant holds a senior certificate (grade 12), BA degree majoring in criminology and sociology, post graduate certificate in Education intermediate and senior – phase
The Collective Agreement No 3 of 2016 ELRC GUIDELINES: Promotion arbitrations paragraph 31 provides as follows:
“An employee who alleges that he is the victim of an unfair Labor practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the Labor practice, but also that it is unfair”
The same Collective Agreement at paragraph 33 says the following:
“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, then in order for the employee to prove an unfair Labor practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer”
The above Collective Agreement at paragraph 32 says:
“An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement”
According to Personnel Administration Management chapter B.1 REGV B.1.1, a relative value is attached to an approved qualification or a combination of qualifications in accordance with the measures as set out in the policy document: Criteria for the Evaluation and Recognition of Education for employment in Education. This document further provides that the recognition of diplomas for salary purposes is restricted to not more than two recognized post grade 12 diplomas, to a maximum of REGV 15.
Personnel Administration Measures chapter B, clause B.3.2.1 provides that the requirements for appointment as an educator is basic knowledge of the subject/ program/ phase as provided for in the promotional qualifications.
In our given case, the requirements are competencies in English grade 4 – 7. According to the applicant’s post graduate certificate in education qualifies him to teach English and Tsonga. The applicant did only one course in English at his degree level. However, the respondent led evidence that to be competent to teach English as the advertisement shows, one needs to have done English as a major, thus has done three years of English study and passed English as a major. According to the respondent’s witness, the applicant does not meet this requirement and therefore should not have been shortlisted and or applied.
The appointed candidate M.s Petunia Ndala has done a BED degree with English as a major and was appointed on that basis. In other words, she met the set requirements as the respondent’s witness said. The witness for the respondent admitted that the advertisement may not have stated that the requirements are English as a major, but the competencies as per the respondent’s policies are known and are outlined above.
I accept the respondent’s evidence in this regard. PAM chapter B.3.2.1.1 provides that amongst others, that school-based educators are appointment on the basis of REQV level 13 – 17 and basic knowledge of the subject/ program/ phase as provided for in the professional qualification.
Looking at the evidence in totality, it’s clear that the applicant did not meet the minimum requirements, whereas his competitor M.s Ndala did so, as she passed English as a major and therefore had basic knowledge of the subject as provided for in the professional qualifications.
Did the Head of the Department by appointing M.s Ndala and disregarding school governing body’s recommendations?
Section 6 of chapter 3 of Employment of Educators Act 67 of 1998 provides that:
“6 (1) subject to the provision of this section, the appointment of any person or promotion or transfer of any educator
a) In the service of the Department of Education shall be made by the Director – General, or
b) In the service of a provincial Department of Education shall be made by the head of Department.
The Director – General or Head of Department must consider the recommendation of the school governing body and implement safe in the following circumstances:
i. Any procedure collectively agreed upon or determined by the minister of the appointment, promotion or transfer has not been followed,
ii. The candidate does not comply with any requirement, collectively agreed upon or determined by the minister for the appointment, promotion or transfer,
iii. The candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators.
iv. Sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence or boy or,
v. The recommendation of the said governing body or council as the case may be, did not have regard to the demographic values and principles referred to in section 7(1)
In our given case, the applicant did not meet the necessary competencies, and the Head of the Department was justified in using its discretion by disregarding the said recommendation.