24 August 2026 -ELRC620-25/26EC

       

Panelist: Ncumisa Bantwini    
Case Number: ELRC620-25/26EC

Date of Award: 24 August 2026

IN THE MATTER BETWEEN

SADTU obo Thembani Ngqele : Union/Applicant

AND

Department of Education – Eastern Cape : 1st Respondent

Ms. Yamkelani Peackock : 2nd Respondent

       DETAILS OF HEARING AND REPRESENTATIONS

This arbitration was part heard on 20 October 2025, 01 December 2025, 16 April 2026, 23 July 2026 and was finalized on 24 July 2025 in the 1st respondent’s offices at Fort Beaufort. The dispute came before the ELRC in terms of Section 191 (1) (5) (a) read with section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended, (the LRA).
Mr. Mapuma Luko of SADTU who was later substituted by Mr. Mpumelelo Mkosana an Attorney from Mkosana Attorneys, appeared for the applicant who was also in attendance while Mr. Sivuyile Peter appeared for the 1st and 2nd respondents, the Department of Education-Eastern Cape and Ms. Yamkelani Peacock.
Parties agreed to submit written closing arguments on 31 July 2026. A submission from the 1st and 2nd respondent’s representative was received on 04 August 2026 after a request for an extension was received. All arguments have been considered in the preparation of this award. ISSUE TO BE DECIDED
The issues to be decided is whether the respondent’s conduct of not appointing the applicant to a position of a Departmental head-English at Fezeka Lower Primary School in Peddie was fair or not.
I have considered all the evidence and arguments, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons. I have only referred to the evidence and arguments that I regard as necessary to substantiate my findings and determination of the dispute. BACKGROUND TO THE DISPUTE
The applicant referred a dispute to the ELRC regarding an alleged failure by the respondent to appoint him to the position of a Departmental Head at Fezeka Lower Primary School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration through his union. SURVEY OF EVIDENCE AND ARGUMENT Applicant’s case
According to Mr. Mkosana ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for a position of a departmental head at Fezeka Primary School. Both the applicant and the incumbent were shortlisted and interviewed. The applicant was ranked the highest at the interview but the incumbent was appointed.
The applicant will call 3 witnesses who were panelists at the interview process and a SADTU member who was the observer. The remedy sought is the appointment of the incumbent to be set aside and the applicant be appointed to the position he had applied for.
The applicant, Mr. Thembani Ngqele testified under oath as follows:
He works for the 1st respondent since 2020 as Educator Assistant, in April 2021 as SGB Teacher and was appointed on full-time basis on 19 May 2021 as Post Level 1 Educator. He applied for the position of Departmental Head and was interviewed on 13 August 2025.
There were 5 panelists and a SADTU representative who was an observer at the interview, and he was the only male candidate. He answered all the questions which were posed to him and he came out confident that he had performed well.
The position was previously occupied by Ms. Singqoto who retired. He became aware of the outcome of the interview on 01 September 2025 when the principal advised staff in the meeting that Ms Peacock had been appointed to the position. The principal in her office also advised him that he (the applicant) was number 1 or rated the highest but that the school wanted someone from outside. He was hurt and this had an impact in his performance. The final score sheet appears on page 1 of the bundle. He was scored 92 while the incumbent was scored 80 and was rated as no.2 by the panel of the interview. The bulletin appears on page 4 of the bundle and the position is for all foundation phase.
No other reasons were given to him by the principal. The relationship between him and the principal was good. He was unfairly treated as he was supposed to have been appointed as he was rated as the best suitable candidate. He was a learner in the same school. He seeks appointment to the position.
Under cross-examination, the applicant testified as follows;
He was rated as the best candidate and the incumbent was number 2. The incumbent does not have management amongst her qualifications and she was not supposed to have been appointed. He was not present when the other candidates were interviewed. He is also a member of SGB since 2025, Mrs. Msutwana was the resource person during the interview process. Training was conducted by the CMC, Mr. Mboto.
He became aware of his non appointment in a staff meeting when the principal was advising staff that Ms Peacock was appointed to the position. The entire SGB wrote a letter recommending appointment of Ms. Peackock/incumbent. He grew up in the community and studied in the same school.
When a questions as to whether the applicant is entitled to be employed was posed, his response was that he was the best candidate for the position. He further stated that the conduct of the principal will affect his performance.
Under re-examination, the applicant stated that the principal called him to her office and advised him that he was unsuccessful and another candidate had been appointed. He was only advised after the interview that the principal was discouraging any internal candidates to apply for the position.
Ms. Bulelwa Ngesi, the first witness for the applicant testified as follows:
The interview process was conducted on 13 August 2025 and she was the chairperson of the panel. It was her first time to chair the interview process and the panelists were all trained before the process of short listing was conducted. The principal, Mrs. Nana Msuthwana was the resource person, assisting her by guiding her in chairing the recruitment processes.
Before the commencement of the interview, they were given forms to complete and sign by Ms. Mpho Moss who is the SGB Secretary. Nothing was explained to them and there were no discussions about the candidates. The principal told them that no candidate from Fezeka Primary School should be considered for the position because of shortage of teachers in the school. The principal advised her that she had already told other panelist members.
During the interview, all scorers had their own scoring sheets and all scores were added. Ngqele scored 92 while Ms Peacock scored 80. The applicant performed very well at the interview. The principal had told the panel that internal candidates should not be considered for appointment in the position. The principal, upon realizing that Ngqele had the highest score, became furious and wanted to know as to why the panel did not adhere to her instructions. The principal told the panel that Ms. Peacock must be appointed. Ms Bonkolo, the SADTU official who was the observer, suggested that the issue be referred back to the district office and suggested that an independent panel be appointed. There was nothing preventing internal candidates from being appointed to the position except that the principal was skeptical about the shortage of teachers in the school.
The interview was concluded hoping the Circuit Manager would resolve the issue as she was called. The witness testified further that she was made to sign some documents while she was in town by Ms. Moss (page 1 and 2). Other documents which she was instructed to sign appear in pages 11A and 11B. The witness testified further that she was part of the ratification meeting that was held on 14 August 2025. The minutes were taken by the SGB Secretary, Ms Moss and the panelists were told that Ms. Peacock, number 2 was going to be recommended for appointment because of shortage of teachers in the school. Other members of the SGB were not happy as the reason of teacher shortage did not hold water. All the documents which they were made to sign were never explained to them.
Under cross-examination by Mr. Peter, the witness testified as follows:
She joined the SGB in June 2024 and she was not part of the previous SGB. She was elected as the chairperson of the SGB. The SGB members who were elected as the panelist members were trained before the process of appointment of the Departmental Head was conducted. She was also inducted on how the school operates and the workshop was held in East London.
During the appointment of the Departmental Head, she was the chairperson of the SGB and this was her first time to chair the selection processes e.g. shortlisting, interview and ratification. The principal was the resource person. She signed all the documents she was instructed to sign by Ms Moss without reading them as they were not even explained so that the process can move forward.
She was involved in the recruitment process of the Deputy Principal and the process was fairly conducted. She trusted the process and she did not have a problem in chairing the processes. They were given forms to complete pages 3,5,6 11A,11B and 12. Page 5 contains the attendance register and no one forced her to sign it. The ratification meeting was held a day after the interview (14 August 2025) and the entire SGB was present. She understands the confidentiality form and all panelists signed it including herself. The forms contained from pages 13 to 19 were never explained. She disagreed with the ratification meeting minutes.
Under cross-examination by the 1st respondent’s representative, the witness testified as follows:
She was the chairperson of the SGB during the recruitment process of the Departmental Head at Fezeka Primary School. She chaired the short listing, interview and ratification processes. She received training before the recruitment started together with other members of the panel and it was conducted by the Circuit Manager. It was her first time being a chairperson of a recruitment process. She was inducted after she was elected as a chairperson. The induction programme was attended by herself, treasurer and the principal.
Motivation of the incumbent’s appointment was conducted on 14 August 2025 (page 2 to 3). She attended the selection of the panel meeting and the declaration form was never discussed or explained but she was asked to sign it. They were told that they will be signing forms from time to time. Five candidates were shortlisted but the 5th candidate, Ms Moss did not attend the interview process. Out of 4 candidates who were interviewed, Mr. Ngqele was rated as number 1 with 92 points and Ms. Peacock as number 2 with 80 points. She did not ask the trainer about the forms. Pages 11A and 11B were given to her to sign. She was not aware about the contents of these forms but Ms. Moss told him that the forms will be submitted at the Circuit Manager’s office. She was never involved in meetings that were held outside the school/interview process and she is still the chairperson of the SGB.
Under re-examination. The witness stated that she has std 9 as her highest qualification. Numerous forms were handed by Ms. Moss who is the SGB Secretary. On the day of the interview,13 August 2025 after the scores were read, the principal got furious and reminded the panel that no internal candidates should be considered for the position.
The late Ms. Msuthwana told her about this before the interview process was conducted while she was at the school. She was asked to sign documents which appear on pages 20A and 20B. The documents were not explained to her and she did not read them.
The second witness, Mrs. Pumeza Bonkolo, testified as follows:
She is a teacher and she was an observer from SADTU at the interview of the departmental head at Fezeka Primary School. She was present from the shortlisting and the interview processes. After the scores were written on the board, the principal was agitated, she questioned the panel as to why they scored candidate number 3 who happened to be Ngqele the highest scorer. The principal’s concern was that he was from within the school. Ngqele scored 92 and Peacock was scored 80 and was number 2.
The principal was shouting at the panel insisting that she will appoint number 2. Ratification could not be done on the same day and the principal said she (the witness) will call her on the following day (14 August 2025). During the ratification meeting, the principal told the entire SGB that the incumbent will be appointed. This is when she (the witness) wrote a letter to SADTU and indicated in the ratification form that the process was not conducted in a free and fair manner. She then received a call from the church members to go and change what she had written in the form. She is not the one who has to decide which candidate has to be recommended. Upon the instruction by the Secretary of SADTU, she amended the form. The employee was unfairly treated as he is one who was supposed to have been recommended for the position
Under cross-examination by Mr. Peter, the witness testified as follows:
Her school is not far from Fezeka Primary School and the applicant was doing grade 8 in her school. Her objection was based on non-appointment of the applicant whereas he was the best candidate for the position. She was trained before the selection process started and she raised an objection of appointment of the incumbent instead of the applicant. SADTU secretary, Ms. Vimbi instructed her to remove the objection in the ratification form and she did. She is aware that the District Director can appoint any interviewed candidate.
Under re-examination, the witness stated that she was an observer in the selection process. The applicant was not treated fairly as he was the highest scorer. She could not have influenced the panel of the interview.
Ms. Siphokazi Dyosi, the 3rd witness testified as follows:
She is a member of SGB at Fezeka Primary School since 2025 when one of the members resigned. The SGB was trained before the selection process started. The SGB elected a panel of the interview before the shortlisting was done. The late Mrs. Nana Msuthwana who was the principal was the resource person. All the 5 candidates met the requirements of the position. The principal told them before the interview that candidates from Fezeka School should not be considered for the position. This was on the day before the candidates were interviewed (1 August 2025).
On the day of the interview, the panelists and the resource person met early to set up questions. Out of 5 candidates who were shortlisted, 4 of them attended the interview. The applicant was the highest scorer and the principal told them with anger that no one from the Fezeka Primary School should be considered for the post. When it transpired that Ngqele was the highest scorer, the principal called the Circuit Manager, Mr. Mbotho who was around at the time. Mr. Mboto did not instruct the SGB to recommend Ms Peacock for appointment as this was the SGB function. Mr. Ngqele was unfairly treated as he was supposed to have been appointed to the position.
Under cross-examination by Mr. Peter, the witness testified as follows:
She was co-opted as SGB member replacing a member who resigned. She had a formal relationship with the principal and she was involved in all the stages of selection process of the HOD position. All candidates were scored based on their performance and questions were compiled on the day of the interview. They were given many forms to sign which were not even explained in the process.
The principal exploded after the scores were written on the board. This is when it transpired that Ngqele was number 1. The principal said she had told the educators at Fezeka Primary School not to apply for the position and this was in passing when the post was advertised. The principal suggested that the EDO is called to resolve the impasse. Mr. Mbotho suggested that the issue be resolved during ratification on the next day. She had no knowledge of what ratification is. She was content as scores were not changed. She never saw any document which was precluding internal staff from applying for the position. She had no problem when other SGB members were invited to attend ratification process on 14 August 2025.
Under re-examination, the witness stated that she is a member of SGB and not an employee of the ECDOE. Her role ended at ratification stage. She has no idea if there were other documents attached to the selection forms. She did sign p.27 but not on 14 August 2025. On the day of shortlisting, the principal told the panelists that no internal candidates should be considered for the position. Page 14 date is altered, pages 20A and 20B she has never seen them before. The SGB never wrote a motivation letter instead the SGB secretary wrote it on the principal’s instruction.
In closing, Mr. Mkosana argued as follows:
In deciding on merits of the allegations regarding the interview, the onus is on the respondent to prove facts on a preponderance of the probability. Where a particular version by the employee is not contradicted by opposing evidence from the respondent, the probability of the applicant’s version is tested against both facts and evidence which cannot be disputed against the inherent probabilities.
A point that is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule is enunciated by the House of Lords in Brown vs Dunn and has been adopted and consistently followed by our courts. It is the duty of the cross examiner to put his version to the witness so as to give him or her an opportunity to respond see Pick n Pay (Kroonstad OFS branch vs Commercial and Catering Allied Workers Union of SA) where it was held that “it is an absolutely a basic rule of procedure and practice that a person who fails to challenge the evidence of witnesses who testify against him does so at his enormous peril”
During cross examination, the respondent’s representative failed to put the version of their witnesses to Mr. Ngqele and his witnesses. Their evidence was not rebutted at any stage during their testimony. The respondent’s representative came with a fabricated and a rehearsed version through dubious witnesses to testify about what happened during the interviews. Some of the witnesses conceded that they were not even present at the interview process but attended the ratification process. There was a lot of contradiction in their evidence and they could not give a reasonable answer as to why the other members of the SGB including the SADTU official would make these allegations against the principal. It was also not disputed that some of the documents were signed by Ms. Ngesi outside the school premises. Ms. Bonkolo was also asked to change the comment to the fact that the process was unfair hence she decided not to make the comments.
Ms. Moss was not a credible witness and her testimony had contradictions regarding the writing of the scores, the relationship with the principal and the incumbent. She initially testified that she did not know Ms. Peacock but during cross examination, she said she studied with her at Rhodes University. The fact that the principal advised Ngqele about the interview results in his office and about an internal candidate is a sign of guilt on the part of the respondent. The only inference that can be drawn from this situation is that both the principal and Ms. Moss acted in concert to manipulate the process because they knew that the SGB members were not well educated. It is quite clear that Ngqele was not treated fairly and remedy sought is that the appointment of the incumbent be set aside and appoint the applicant to the position of Departmental Head. The 1st Respondent’s case
According to Mr. Peter’s opening statement, Both the applicant and the incumbent meet the requirements of the advertised position. The 1st respondent followed all the process and the appointment of the incumbent will be defended.
The first witness Mr. Malusi Maputi, the first witness testified as follows:
He is SGB member and he was part of the selection process of the Departmental Head from shortlisting to interview stage. No issues were encountered in all the stages. Ngqele was number 1 with 92 points and Ms. Peacock was number 2 with 80 points. The Circuit Manager was called because the school has shortage of educators.
The Circuit Manager advised that the issue has to be resolved by the SGB. The entire SGB was aware of the problem and the Circuit Manager suggested that the issue be deliberated at the ratification process which was held on 14 August 2025. He did sign the confidentiality forms that appears on page 16. The outcome of ratification was that candidate number 2 was recommended for appointment to the position. SADTU raised an objection suggesting that the matter be referred to the district office so that an independent panel is appointed.
Under cross-examination, the witness testified as follows;
This was not his first interview being involved as a panelist member. They received proper training before the process started. He was part of shortlisting, interview and ratification. During the shortlisting, a criterion was set and Mr. Ngqele met all the requirements of the position. Five candidates were shortlisted and one of them did not pitch up for the interview process.
The applicant scored 92 and the incumbent scored 80 points. Nothing was said about internal candidates not being considered for the position. The circuit manager was called when panelists realized that Mr. Ngqele was the highest scorer. The witness denied that there was a dispute when some of the panelists could not agree about recommending the incumbent for appointment. Upon his arrival, he advised the panelists to resolve the issue during the ratification meeting on the following day (14 August 2025). The chairperson reminded them about the shortage of teachers in the school.
When a question as to why his version was not put to any of the applicant’s witnesses, his response was that he was not aware that some of the SGB members had testified. He said he was not aware about the conversation between the applicant and the principal to the fact that no one at the school must apply for the position. He had never seen an issue of teacher shortage being discussed at the interview. The witness denied the altercation between the panel and the principal after the scores were revealed.
The witness could not dispute nor deny the SADTU representative’s evidence to the fact that she indicated that the process was not free and fair but instructed to change the comments. The ratification minutes were drafted by the SGB secretary and he could not confirm if the secretary and chairperson were together when they signed the minutes (page 20A). He does not know the role of the resource person.
Under re-examination, the witness stated that there was shortage of teacher at Fezeka Primary School. Ms. Ngesi was chairing the selection process for the departmental head. The minutes were not objected to.
The second witness Ms Zoleka Konono, testified as follows:
She is the SGB member representing the parent component and she participated in the recruitment process of the departmental head. Her highest qualification is Grade 11. She only participated in the selection process during the ratification meeting on 14 August 2025. She signed the attendance register that appears on page 22. Number 2 was recommended for appointment because of teacher shortage at Fezeka Primary School. Mr. Ngqele is a teacher at Fezeka Primary School. Ms Ngesi, the chairperson of the SGB was chairing the meeting. Two teachers left the school in 2025 and this caused the shortage. The principal was promising to resolve the issue in the school.
SADTU official who was the observer, showed dissatisfaction and he knows the applicant as her former student. The SADTU official was not supposed to attend the ratification meeting hence she did not sign the attendance register. The minutes of ratification were compiled by the SGB secretary and were signed by her and the chairperson (page 20B).
Under cross-examination, by Mr. Mkosana, the witness testified as follows.
She is a member of SGB at Fezeka Primary School and she only attended ratification process. Number 2, Ms. Peacock was recommended for appointment. She was elected as a member of SGB in 2024. The issue of teacher shortage started before she was elected as SGB member in 2024. The teacher who was holding the position in question, retired and the second one got a higher position in another school. He did attend training before the recruitment process started in 2024. She was not involved in the initial stage but she knows that the principal was the resource person.
The SADTU observer was not scoring candidates during interview process. She could not have an influence in the scoring of candidates. She only attended the ratification process because she was bereaved. Ms. Bonkolo disrupted the ratification process by voicing her dissatisfaction when the SGB decided to recommend number 2 for appointment. Ms. Bonkolo did not sign the attendance register because she was not supposed to attend the ratification process.
Under re-examination the witness stated that during the ratification process, the chairperson gave feedback regarding scores. Mr. Ngqele was number 1 and Ms. Peacock was number 2 and was recommended for appointment because of teacher shortage. Motivation was drafted by the SGB. (page 20 A and 20B).
The third witness Mr. Lindikaya Ngxale testified as follows:
He has never been involved in the recruitment process and his highest qualification is STD 6. He is a member of SGB representing the parent component at Fezeka Primary School. He was only part of ratification process. Mr. Ngqele was the highest scorer but the SGB decided to recommend the incumbent for the position.
Under cross-examination by Mr. Mkosana, the witness stated that he was involved in the selection process at the end and he does not have an idea as to what happened before ratification. He signed the attendance register. The chairperson suggested that number 2 be recommended for appointment because of teacher shortage.
The witness could not respond when a question as to why the shortage of teachers becomes the applicant’s problem was asked. He testified further that the principal promised to take the matter up with the relevant structures. On 14 August 2025, he does not recall if everything was explained (pages 28) but he recalls appending his signature in the register (page 22). He left for work before the end of the meeting and he has no idea about the panelists being shouted at by the principal.
The SADTU official was an observer and she was not supposed to attend the ratification meeting. She suggested that the process be referred back to the district office so that another panel is appointed. The process did not start afresh.
Under re-examination, the witness stated that he is a member of SGB at the school. On 14 August 2025, the chairperson of the SGB made feedback of what transpired on the day of the interview to the entire SGB. No one objected to the feedback.
The fourth witness Ms. Mpho Moss testified as follows:
She works for the 1st respondent as grade 3 Educator and is a member of SGB as a Secretary. She started the process of selection for the departmental head from shortlisting up until the ratification stage. No issues were encountered at the shortlisting stage. Four candidates were interviewed and Ngqele was number one in terms of scoring. The SGB discussed the issue of teacher shortage as the applicant was number 1. Before the commencement of the interview, she gave all the participants confidentiality forms and attendance register to complete. All the documents are explained during the training and she also explained them. There were no objection and all panelists’ members kept their score sheets confidential. She compiled the interview minutes as she was the secretary.
After the scores were revealed, the chairperson raised an issue of teacher shortage in foundation phase. Mrs. Ngqoto retired in March 2025 and the second teacher left the school for a higher position in another school. The entire SGB at ratification stage decided that the incumbent be recommended for appointment as she was from another school instead of Mr. Ngqele who is from Fezeka Primary School. SADTU official had on 13 August 2025 suggested that the process be started from scratch and request the district office to appoint an independent panel.
On 14 August 2025, during the ratification process, all members of the SGB were present and they agreed that the incumbent be appointed (page 22). SADTU official did not sign the attendance register during the ratification process because she was not supposed to attend. Page 20A and 20B were signed by the secretary and the chairperson of the panel of interview. The decision of the entire SGB during ratification process was informed by the curriculum needs of the school. All the documents were submitted to the district office for submission to the HOD for approval.
The role of the union in any selection stage is to observe but the conduct of Ms. Bonkolo was disturbing as she kept interjecting when a decision to recommend the incumbent was made. She kept on saying that Mr. Ngqele was the best candidate and a son of the soil. She is the principal of a neighboring school, Mzuxolile High School next to Fezeka Primary School. The relationship between the principal and the SGB was fine. After the incumbent assumed duties, there is a difference in the shortage of teachers.
Under cross-examination, the witness testified as follows:
She is the secretary of the SGB at Fezeka Primary School. She does not know as to why the 3 SGB members including the SADTU official testified that the selection process was unfairly conducted. She could not respond when a question as to why was the version not rebutted or challenged when the applicant and his witnesses testified.
The witness testified further that the SGB meetings were attended with the principal present and the issue of teacher shortage was also discussed and it arose when the 2 teachers left the school. The SGB panelists were trained prior the commencement of the selection process. All forms which were signed were explained by herself. Not all of the SGB members possess matric qualification. The principal was the resource person. When it was put to the witness that the principal approached the SGB telling them that no one from the school should be considered for the position, her response was that she has no knowledge of that discussion, she cannot dispute that as she might have spoken to other SGB members. The circuit manager was called by the chairperson and not by the resource person. It is not true that the principal started the commotion after realizing that Ngqele was the highest scored candidate.
Ms. Moss stated also that she does not know as to why was this version was not put to the applicant’s witnesses. Teacher shortage has been an issue at shool and the process of ratification could not be conducted on 13 August 2025 because 2 SGB members, Ms. Konono and Mr. Ngxale were not present. Ratification was then scheduled for 14 August 2025. All the members of the panel, including the observer did not write comments in the confidentiality form and she does not have knowledge as to why the observer did not indicate that the process was conducted unfair. The witness also disputed that there was a commotion when a decision to appoint the incumbent was discussed. The role of the SGB ended when all the documents were submitted to the district office, the process was fair.
Under re-examination, the witness disputed that the internal staff were instructed by the principal not to apply for the position, as the applicant and another teacher applied for the position. The entire SGB has to be present during the ratification process.
In closing Mr. Peter argued as follows:
It is common cause that all the shortlisted candidates including both the Applicant and the incumbent meet the minimum requirements of the departmental Head post, Vol 2 OF 2025, no 234 at Fezeka Primary school. All parties even though their witnesses agreed that the Applicant was number 1 as per interview panel scoring of candidates and recommend as such to the entire School Governing Body for ratification purposes.
No one disputed the fact that there was injustice of not depriving Fezeka Primary School in particular Foundation Phase learners their constitutional right for Quality Public Education. In that for a long time because of shortage of Educators, Grade R learners were taught by the Educator Assistant with no Teaching qualifications also Grade 1 learners were taught by a Grade R Educator with no Foundation Phase Educator qualification.
The respondent’s prayer is for the Commissioner to declare that the respondent has not unfairly treated the applicant during the shortlisting and the interview process and subsequent ratification meeting held School Governing Body at Fezeka Primary School on the 14th August 2025, which wrote and signed the motivation to the respondent for the appointment of the incumbent. ANALYSIS OF EVIDENCE AND ARGUMENTS
The issues of common cause that relates to this matter are as follows:
• That the applicant applied for an advertised position of Departmental Head at Fezeka Primary School in Peddie.

• That the applicant was shortlisted and interviewed but was not appointed to the position.

• That Ms. Peacock was recommended by the SGB and appointed to the position although she was not rated as the best suitable candidate for the position at the interview stage.

• That both the incumbent and the applicant meet the minimum requirements for the position.

• That the applicant was the highest scored candidate with 92 points while the incumbent was scored 80 points.

It is the applicant’s case that the selection process was unfairly conducted and was not conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as ELRC CA 2 of 2002) as he was not appointed while he was rated as the best suitable candidate during the interview.
It is trite law that a point that is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.
It must be noted that the applicant’s evidence and that of his 3 witnesses was never challenged by the 1st respondent instead, the respondent’s witnesses brought a completely different version, and no answers were offered for not challenging the referring party’s version.
It is the applicant’s testimony that the principal in her office advised him that he (the applicant) was number 1 or rated the highest scoring candidate but the school wanted someone from outside.
The applicant’s evidence corroborated with his 3 witnesses who testified that the principal had told the panel that internal candidates should not be considered for appointment in the position. The principal, upon realizing that Ngqele had the highest score, became furious and wanted to know as to why the panel did not adhere to her instructions.
It must be noted furthermore that the fifth candidate who was shortlisted who was from the school (Fezeka Primary School) did not attend the interview process and an inference that could be drawn is that she had knowledge of the principal’s wishes and instructions.
Although it is disputed by the respondent that after the scores were revealed, the principal got agitated and there was disunity among the SGB members until a decision to call the Circuit Manager, Mr. Mboto was made. It is also not disputed that Ms. Ngesi, the chairperson of the SGB was made to sign some of the documents which were not even explained to her outside the school premises.
It must be noted that the issue of teacher shortage, which the respondent contends as the main reason for not appointing Mr. Ngqele to the advertised position, has been there for many years and it could not have been introduced to subject the applicant to an unfair treatment in my view.
I concur with the applicant’s contention in his closing arguments that the only inference that can be drawn from this situation is that both the principal and Ms. Moss acted in concert to manipulate the process because they knew that the SGB members were not well educated.
In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e. it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualification and/ or suitability for the position in question, against that of other candidates. The court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for the Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate”
It appears from the parties’ evidence that the 1st respondent did not follow a fair process substantively in appointing the incumbent as she was not the best suitable candidate for the position of Departmental Head-English at Fezeka Primary School and as such exercised its prerogative in a biased, unfair, capricious and unjust manner in appointing Ms. Yamkelani Peacock, the incumbent instead of Thembani Ngqele, the applicant to the position. The applicant proved that he was the best candidate for the position.
In Ncane v SSSBC and Others DA 27/15 others (DA 27/15 [2017] ZALAC 1; (2017) 38 ILJ 907 (LAC) (handed down on 10 January 2017) the court noted that the purpose of promoting the Employee is usually because the employer’s organization has a vacancy for a person to perform a particular task and candidates for promotion are Employees functioning at a lower level who possible have the qualifications, skills and ability to perform tasks of the higher position. Good labour relations dictate that the Employer must act fairly towards its Employees. In the context of promotion, this means that;

• An Employer must abide by the law and the objective standards and criteria that it has set for promotion including eligibility for the post and

• Ensure that an eligible Employee has a fair opportunity to compete for the post. It is usually said that this leg of the promotion process must be procedurally fair. As the aim of a fair process is to achieve a fair substantive result, procedural unfairness may result in the final decision itself being substantively unfair”

101. The applicant has discharged the onus to prove the claim of unfair labour practice based on promotion on the balance of probabilities by the respondent.

AWARD

102. I therefore make the following award:

103. The non appointment of the applicant, Mr. Thembani Ngqele to the position of Departmental Head at Fezeka Primary School by the 1st respondent, the Department of Education – Eastern Cape was both procedural and substantively unfair.

104. The 1st respondent committed an unfair labour practice as provided in section 186 (2) (a) of the LRA in that it acted in substantively unfair manner when it did not appoint the applicant to departmental head position -English (post number 234 volume 2 of 2025) and appointed the incumbent instead.

105. The 1st respondent, is ordered to reverse the appointment (promotion) of the incumbent to Fezeka Primary School departmental head position -English (post number 234 volume 2 0f 2025) by no later than 01 September 2026/

106. The 1st respondent, the Department of Education-Eastern Cape is further ordered to promote the applicant Mr. Thembani Ngqele to Fezeka Primary School departmental head-English position (post number 234 volume 2 of 2025) with effect from 01 September 2026.

107. There is no order as to costs

Signature
Ncumisa Bantwini
ELRC Panelist