24 February 2026 -ELRC745-25/26EC

Case Number: ELRC745-25/26EC
Panelist: Thobela Obey Mqamelo
Date of Award: 19 February 2026

In the Arbitration matter between

Sindiswa Tiyo
(Applicant)

And

Eastern Cape Department of Education & 1 Other (Bonani Sifile)
(Respondent)

DETAILS OF HEARING AND REPRESENTATION

This unfair labour practice dispute with specific reference to promotion was set-down under the auspices of the Education Labour Relations Council and arbitrated on 27 November 2025, and on 27 January 2026 via the online platform (Microsoft Teams).
The Education Labour Relations Council (Council) hosted the proceedings.
On the conclusion of the arbitration parties agree to file closing arguments by 03 February 2026. Both parties have complied, and have perused their closing arguments.
The applicant, Sindiswa Tiyo (Ms Tiyo) was present and represented by Lungile Dume (Mr Dume) from SADTU (Treasure – Zwide Branch).
The respondent was present and represented by Analie Slabbert (Ms Slabbert) the Labour Relations Officer from the respondent.
Parties shared bundles of documents and were respectively marker Bundle EE1 = 13 pages, Bundle ER1 = 203 pages.
It is worth mentioning that on 27 November 2025 the arbitration proceeded in the absence of the second respondent (Mr Bonanli Sifile), the first respondent (Eastern Cape Department of Education) indicated that we may proceed with arbitration in the absence of the second respondent, the matter proceeded. He was in attendance on 27 January 2026.
Parties made their opening statements orally.
Ms Sindiswa Tiyo, Mr Thabo Mapena testified during the proceedings.
Mr Khololwethu Tom was the interpreter on 27 November 2025, and Mr Mbulelo Ndabambi was the interpreter on 27 January 2026.
The evidence was tendered under oath.
The proceedings were digitally recorded.
On 27 November 2025, I was made aware that there were no Pre-Arbitration minutes signed by parties and the Pre Arbitration Conference was held on the record.
Parties agreed on the following common cause and matters in dispute.
COMMON CAUSE MATTERS

• The applicant commenced employed with the respondent on 01 June 2009.
• The applicant is currently employed as a Post Level 1 Educator, and she earns a salary amount R35,684.00 per month.
• The was a position of Post Level 2 (HOD) (teaching subjects: Mathematics, Physical Science, natural Science, Life Orientation) (Salary amount R435,240.00 per annum) at Lungisa High School as advertised on 16 May 2025 -Volume 1 of 2005 (Post 609) as reflected on page 36 of this bundle, with closing date 13 June 2025.
• The applicant applied for this position.
• It is common cause that the applicant passed the Human Resource sifting process.
• It is common cause that the applicant was never scheduled to attend the interviews.
• It is common cause that the incumbent Mr Binani Sifile was appointed to the position of Post Level 2 (HOD) (Salary amount R435,240.00 per annum) on 01 October 2025.
• Citeria 3, states –
‘’Management Through PL1, e.g. SGB secretary, Union involvement, Leaders in School committee.
• Criteria 4, states –
‘’Other Teaching Involvement (21.2 to 21.6) e.g. Tutoring, Marking, Jenn Programme, Departmental Intervention strategies – to be written on the application form’’.

MATTERS IN DISPUTE

Whether or not criterium number 3 of the final criteria was fair.
Whether or not criterium number 4 of the final criteria was fair.
Whether or not the applicant was competent in terms of criteria number 4.
Whether or not the applicant was the best suitable candidate for the position of Post Level 2 (HOD) at Lungisa High School.

ISSUE TO BE DECIDED

I must determine whether or not the respondent, Eastern Cape Department of Education committed any unfair labour practice related to promotion as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 against the applicant, Ms Sindiswa Tiyo.
The applicants sought the appointment of Mr Bonani Sifile to be set aside.
In respect of criteria number 3, the respondent conceded that the applicant has passed the criteria, and only failed at criteria number 4. I explained this to the applicant representative that there is no need to lead evidence on criteria number 3 however he opted to lead evidence on it. There is no probative value for me to attach to evidence on criteria number 3, as it is not the reason why the applicant was not invited to the interviews and not promoted. The respondents assertions and documentary evidence in the bundle shows that the applicant failed criteria number 4, so any evidence and issue raised with regards to criteria number 3 bears no relevance to this dispute.

SUMMARY OF SUBMISSIONS

This is a summary of the evidence considered as provided for in terms of Section 138(7)(a) of the LRA relevant to the dispute at hand.

APPLICANT’S CASE
APPLICANT’S 1st WITNESS
MS SINDISWA TIYO

The applicant’s testimony is that the respondent failed to promote her. She met the fourth criteria which was the last requirement to be shortlisted for interviews. It is her testimony that she has the tutoring experience required to be shortlisted. She referred to page 5 of bundle EE1, in which she submitted that it is an appointment letter for Departmental interventions, which according to her proves that she possesses the requirements of tutoring in the JENN Programme as per criteria number 4.
It is her testimony that the JENN Tutoring Programme it is only for Grade 8 until Grade 10, and that there is no Jenn Programme for Grade 11, 12, and that because the advertised position is for teaching in Grade 8-12 the requirements from JENN Tutoring Programme experience is not fair.
During the cross examination, the applicant conceded that she had worked in the JENN Tutoring Programme prior to the closing date of the applications for this post, however between the period of closing date of the applications and shortlist she obtained the experience of tutoring, and that the Principal as a resource person was aware and should have taken it into consideration. The applicant further submitted that the duties of the Post Level 2 (HOD) does not relate to JENN Programme.
The applicant further stated that she was appointed as a Provincial Central Assessment Chief Moderator of Mathematical Literacy, which makes her to meet the requirements of criteria number 4 of the shortlisting criteria, and she received her appointment on 27 June 2025, and that her Principal Mr Mapena who was serving as the resource person was also aware. It is that applicant’s testimony that at the time of the shortlisting, the resource person (also being her Principal Mr Mapena) in the shortlisting process never informed the short-listing panel, and that had he mentioned it, she as the applicant would have been considered for the interviews.
It is the applicant’s further testimony that because she met the required final criteria and she was denied an opportunity to participate in the interviews, hence the incumbent was appointed. It is further applicant’s testimony that had she been invited to the interviews she would have been appointed, as she is the best suitable candidate for the position.
She testified that she holds high education qualifications (Matric, Secondary Teacher Diploma, Advanced Certificate in Education majoring with Education Management, Honours Bachelor in Education law and systems, and further to that she was promised this position by the Principal Mr Mapena. She testified the she is the best candidate in this position in that she is qualified to teach mathematics, although she is teaching mathematics literature, and not pure mathematics.

RESPONDENT’S CASE
1st WITNESS OF THE REPONDENT
THABO MAPENA

He testified that he is the Principal and Lungisa High School (as from June 2021) where the post was advertised by the respondent. During the short-listings process he was the resource person and his duty was to enquire that the selection panel conduct their duty in a fair manner. He testified that the selection panel conducted their duties in a fair manner during the day of the short-listing, and that there is nothing unfair in the selection criteria number 4, as the Post Level 2 is a managerial post which the school needed someone who show commitment beyond the classroom. He testified that the applicant did not have any other teaching involvements experience in her CV and application, hence she failed in the selection criteria number 4.
It is his testimony that the respondent made a correct appointment by appointing Mr Sifile, as he is the best suitable among the other applicants. The incumbent holds Bachelor of Education degree (Education management and systems), and he teaches pure mathematics which was the requirement for the position, and his curriculum vitae, and application form proves that he is committed beyond the classroom with other teaching activities.

ANALYSIS OF EVIDENCE AND ARGUMENT

Section 186(2) of the labour Relation Act 66 of 1995 (LRA) defines an unfair labour practice to mean: ‘’any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to the promotion, demotion, probation, (excluding disputes about dismissals for reasons relating to probation) or training of an employee or relating to the provision of benefit to an employee;
(b) the unfair suspension of or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) a failure or refusal by an employer to re-instate or re-employ a former employee in terms of an agreement; and
(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000) on account of the employee having made a protected disclosure as defined in that Act’’.
The onus of proof rest on the applicant to prove the unfair labour practice.
It must be noted that the matter of the grievance which was submitted by the applicant to the selection panel after she had not been shortlisted for interviews is not relevant to this unfair labour practice dispute. For purpose of this dispute my determination must start from the filing of the application form until day of the short-listings.
The applicant’s case was premised on two issues, the testimony that she met the criteria, and the testimony that the criteria was unfair. I have perused the documents as referred to by the applicant. Page 5 bundle EE1 which is a letter from Nelson Mandela District Departments of Education appointing the applicant as a Tutor in a District Support Programme (intervention 2025), the appointment letter is dated 02 August 2025.
It was put to the applicant by Ms Slabbert that if she possessed experience such as tutoring, marking, or in the departmental intervention programmes why did she not indicate in her application and CV when she was applying, and she conceded that she only participated in JENN programme after the applications were closed. It is proved by the applicant’s own evidence that her appointment for Tutoring happened after the applications for the post in question had closed. This also supports the testimony of Mr Mapena that the applicant did not have any of the required experience (Tutoring, Marking, and having assisted in any of the Departmental Strategies, and only acquired experience ex post facto.
In his application form the second respondent Mr Sifile, indicated that he has experience as a JENN Tutor, LIAS Tutor, and Physical Science Marker. It must be noted this is not a scenario where the applicant, Ms Tiyo had forgot to indicate her experience in other teaching involvements in the application, It has been proved that she completely did not possess the experience required in criteria number 4 of the selection criteria.
Mr Mapena disputed having promised the position of the Post Level 2 HOD to the applicant. He testified that he might have distributed the advertisement to the applicant and other people to apply. In my view there is nothing extraordinary when a person shares job advertisements with his colleagues. That alone cannot be interpreted as a promise for a job, and with the applicant’s experience in teaching she ought to have been aware that appointment is the prerogative of the Eastern Cape Department of Education, and not of the Principal.
There was a version put to Mr Mapena by the applicant’s representative Mr Dume that he (Mr Mapena) is the one who gave the interview question to the interview panel. I cannot comprehend how something alleged to have happened during the interview could have prejudiced the applicant as she was not part of the interviews.
In terms of qualifications, it is worth mentioning that a Bachelors degree, which Mr Sifile possesses, carries more weight and is more direct, relevant and a more professional qualification than an Advanced Certificate in Education which the applicant possesses. Furthermore, the fact that he (Mr Sifile) teaches pure mathematics at Post level 1 and the applicant teaches mathematics literacy at post level 1 put Mr Sifile at an advantageous position to that of the applicant, as the position applied for was for a pure Mathematics Educator.
It is evident that the criteria was not only crafted by the School Governing Body only, it was crafted by all the participants in the selection panel which included trade unions that represented the interests of the employees. Further to that, I agree with Mapena’s testimony that criteria no 4 requirements was other teaching involvements, and the tutoring, Jenn Programmes and Departmental interventions are just examples set to guide the candidates in their application. That is even stated in the criteria using ‘’e.g’’ and I find the criteria being achievable and fair taking into consideration the fact that Post level 2 is a managerial position.
It was not disputed that Post level 2 HOD is a managerial position therefore I find nothing unfair in the criteria, the applicant failed to prove her allegations that the criteria was narrowed so that only the incumbent can go through it. The requirements of other teaching involvements are also required in the standard application form. I am convinced by the testimony of Mr Mapena that the mentioning on criteria no 4 of ‘’JENN programme, Tutoring, Departmental intervention’’ was for guidance to applicants and not a specific requirement. I therefore find nothing unfair in the final criteria no 4 of the shortlisting criteria.
The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus on a balance of probabilities. I am satisfied that the Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly the Applicant’s claim must be dismissed.
The Applicant is not entitled to relief.