25 June 2025 2025 – ELRC1225-24/25WC

Arbitration Award

Commissioner: Gerald Jacobs
Case Number: ELRC1225-24/25WC
Date of Award: 24 June 2025

In the matter between:

NAPTOSA obo Faldielah Haupt
(Applicant/Employee)

and

Education Department of Western Cape
(Respondent/Employer)

Details of Hearing and Representation

This is the award in the arbitration between the applicant, the National Professional Teachers’ Organisation of South Africa (NAPTOSA) on behalf of Ms Faldielah Haupt and the Education Department of the Western Cape, the respondent.
The arbitration was held under the auspices of the Education Labour Relations Council (ELRC) in terms of section 186 (2)(a) of the Labour Relations Act, 66 of 1995 as amended (“the Act”), The award is issued in terms of section 138 (7) of the Act.
The arbitration hearing was held remotely via Microsoft Teams on 31 March 2005, 24 April 2025 and 28 May 2025. Ms. Robyn Newman, a full-time shop steward from NAPTOSA, represented the applicant. The respondent was represented by its Labour Relations Officer, Mr. Tebogo S. Seelamo.
The proceedings were digitally recorded.
The issue/s to be decided
The issues in dispute, as outlined in the pre-arbitration minute, were whether the respondent had committed an unfair labour practice by not appointing the applicant to the position of Department Head at Liesbeek Primary School.
In terms of the relief sought, the applicant is seeking an order directing the respondent to appoint the applicant to the position of Department Head and to pay her the remuneration and benefits applicable to that position backdated to the date she should have been appointed.
Background to the dispute
The dispute between the parties arose against the following background. The applicant has been employed by the Western Cape Education Department since 2003. For the past five years, she has been serving as the acting Departmental Head at Liesbeek Primary School in Mitchells Plain. Although she continues to act in this leadership role, she is officially appointed at the level of Educator Post Level 1. She holds an Advanced Certificate in Education from the University of Cape Town, a Level Three Diploma in Education, and is registered with the South African Council of Educators.
When the post she was occupying in an acting capacity was officially advertised as Post Number 338 on Vacancy List 1 of 2023 on the respondent’s bulletin, she applied. Out of eight applicants who applied for the position, five were shortlisted. One later withdrew, and the remaining four were interviewed by the School Governing Body (SGB) on 18 September 2023. The interview committee (IC), which consisted of three panellists, scored each candidate out of 75 points based on their responses to five structured questions. The IC agreed that their final recommendation would be based not just on scores, but also on group discussion and consensus.
Once interviews were complete, the SGB compiled and reviewed the scoring. When the scores were compiled, the highest-performing candidate received 165 points out of a possible 300, or 55%. The next best scored 110 points (39%). The applicant and another female candidate both received 75 points (33%), tying for the lowest score. Despite this, the SGB nominated the applicant as their first-choice candidate. They justified their decision by pointing to her current experience and involvement with the school, as well as broader goals such as advancing employment equity and promoting transformation. They also noted that a written motivation would be provided later.
From April 2024 to September 2024, a series of communications unfolded between the Western Cape Education Department (WCED), Directorate: Recruitment and Selection and the school. On 30 April 2024, the nomination was first rejected due to “insufficient information,” with requests made for documents like interview score sheets and a complete motivation. The school responded with some of the missing materials in May 2024 and June 2024, including corrected interview and shortlisting minutes. Despite this, the Directorate: Recruitment and Selection continued to raise issues. Emails in June 2024 and July 2024 noted incomplete or inadequate documentation, such as interview minutes not accounting for all scoring, and the motivation letter failing to address all candidates.
On 22 September 2023, the SGB submitted a written motivation explaining their decision. They acknowledged her five years of acting in the role, her leadership in curriculum coverage and monitoring, moderation, finance, and governance, and her involvement in developing school improvement plans and coordinating teacher workshops. Reference checks described her as reliable, responsible, and active in supporting teaching and learning. The SGB also compared the other candidates, noting that one lacked strong management experience; two others were seen as not ready for the role, with weak interview performances and limited leadership exposure. Based on this, the SGB concluded that the applicant was the best fit for the specific needs and context of the school.
On 25 September 2024, the Directorate: Recruitment and Selection emailed district officials to raise concerns about the nomination process for a departmental head position. The email, sent by Human Resource Clerk Pelisa Nxikwe to Circuit Manager Shandre Otto and Administrative Officer Madeline Stout, highlighted that the SGB had submitted only one nomination, despite a 22% gap between the top-scoring candidate and the nominee. Further concerns were raised that the SGB’s written motivation lacked substance and failed to justify the nomination in light of the score discrepancy. The directorate asked Shandre Otto to step in and help resolve the matter.
On 1 October 2024, the Directorate formally rejected the SGB’s nomination. That same day, the applicant was invited to a second interview, an invitation issued by Ms Otto’s office, though she was unable to explain why it was sent. The interview was scheduled to take place on 10 October 2024. However, the Directorate: Recruitment and Selection was neither informed of this interview nor involved in authorising or arranging it.
In response to the rejection sent by the Directorate: Recruitment and Selection, the SGB submitted a second and more detailed motivation on 16 October 2024. This document directly addressed the concerns raised by the directorate. In their motivation, the SGB acknowledged that another female candidate had scored higher but argued that this was largely because she frequently quoted policy and legislation during the interview. They stated that while she knew the theory, she failed to demonstrate how she would apply it in real-life school scenarios. They also noted that this candidate emphasised the use of smartboards, tablets, and ICT tools in her approach to teaching, but Liesbeek Primary, located in a disadvantaged area, lacked the necessary infrastructure and equipment to support such methods. The SGB felt that this approach was impractical for their school and stated they could not appoint someone who might not be able to implement her vision for the next five to eight years.
In contrast, they described the applicant as someone who could translate her knowledge into meaningful, real-world teaching. She had deep experience in the Foundation Phase, had led all four grades in that phase, and had a firm grasp of the curriculum, QMS, and administrative processes. Her interview, according to the SGB, showed insight into how teaching and learning needed to happen in their specific context. They also felt that her CV did not fully reflect her capabilities, but the interview revealed her strengths. They stated clearly that they were not prepared to appoint a candidate just because she aligned better with WCED priorities if those priorities did not serve their school’s current needs.
In the end, the applicant was informed that her nomination had been rejected and that the position would be re-advertised. As a result, she referred the matter to the Education Labour Relations Council (ELRC).
The matter could not be resolved at conciliation, and a certificate stating that the dispute remained unresolved was issued. The applicant then requested that the dispute be resolved through arbitration. At the conclusion of the hearing, both parties agreed to submit written submissions instead of oral closing arguments. They were instructed to submit their written submissions by 4 June 2025. The 14-day period for issuing the arbitration award, as required by Section 138(7) of the Labour Relations Act, began from this date. Both parties submitted their closing arguments as directed.
Survey of evidence and arguments
Documentary evidence:
The parties had prepared an agreed bundle of documents, which was referred to from time to time during the course of the hearing. The agreed bundle of documents is marked ‘Bundle A’, consisting of 70 pages.
Applicant’s Evidence
The applicant claims the process was unfair. She believes the SGB provided adequate documentation and justification for her nomination. She stands by the motivation submitted, arguing that it was valid and aligned with the requirements set by the WCED guidelines.
She considers the rejection of her nomination unfair, particularly because no clear reason was given, and her principal never explained why the post was re-advertised. She also pointed out that the final decision was made by the Directorate, not the Head of Department, which she sees as irregular.
Cross-Examination
When asked how the department could appoint her without disadvantaging other candidates, one of whom scored higher during the interview, she replied that the SGB submitted the required motivation and that she was not responsible for writing it, so she could not explain their rationale.
The respondent’s representative put it to her that the absence of documentation on the second interview suggests the SGB deviated from the correct process and failed to convince the Recruitment and Selection Directorate of nominating her as the best candidate in their motivation. This, he claimed, made it impossible for the WCED to appoint anyone, necessitating re-advertisement of the post.
In response, the applicant referred to Collective Agreement 1 of 2023 (page 57), which requires the interview committee to rank candidates and provide reasons for their nomination to the SGB, who then submits it to the WCED for ratification. She stated that these procedures were followed.
While acknowledging that a nomination is not a final appointment, she argued that the communication to the Circuit Manager stating “we cannot appoint her” effectively treated the nomination as if it were a confirmed appointment. She contended that the refusal to appoint her was therefore unfair.
When asked whether she suffered any material prejudice, given that she remains in the acting position and receives an acting allowance, the applicant responded that staff and parents do not fully respect her when she is introduced as the “Acting Departmental Head.” This, she explained, undermines her authority and credibility, suggesting that her status and legitimacy as the Department Head are diminished without formal appointment.
The respondent’s evidence
Ms Shandre Otto
She is the Circuit Manager with the WCED, responsible for Circuit 8 in the Metropole South District. Her circuit includes 30 schools in areas such as Mitchell’s Plain, Ottery, Plumstead, and Wynberg, including Liesbeek Primary School. In this role, she supports and supervises school management teams, works closely with principals and SGBs, and ensures that WCED policies and procedures are effectively implemented across the schools in the Metropole South District.
One of her main responsibilities is managing the recruitment and selection of Deputy Principals and Principals in her Circuit. In these cases, she acts as the WCED’s designated resource person, ensuring the process is fair and complies with the law. For Departmental Head and teacher positions, this role is typically handled by a principal from a nearby school.
She explained the recruitment process within WCED, specifically with the Departmental Head position and stated that when a Departmental Head vacancy is advertised, the SGB drafts the notice, and the school principal captures it on WCED’s e-recruitment system. An interview committee is then formed, which includes a WCED-appointed resource person to observe and advise. Shortlisting is based on a minimum score threshold, and interviews are conducted using structured questions aligned with WCED guidelines. After interviews, the committee nominates up to three candidates, ranked in order, and presents this to the full SGB for ratification before submission to the recruitment and selection directorate. However, final appointment decisions are made solely by the WCED’s Recruitment and Selection Directorate. If disputes arise, the Labour Relations Office or the Directorate may refer the matter to the Circuit Manager for further investigation.
In the case concerning the applicant, she was instructed to intervene after the SGB nominated the applicant, who scored significantly lower than other candidates. Her task was to investigate the reasoning behind the nomination and request a revised motivation that could justify bypassing the top-scoring candidate.
The SGB claimed the applicant was best suited in terms of the context and the needs of our school, but she found this justification problematic. If the SGB believed certain qualities were essential for the role, those qualities should have been embedded in the interview process through specific questions. A candidate who met those criteria should then have scored accordingly. To argue afterwards that a lower-scoring candidate is better suited undermines the integrity of the process and contradicts the logic of the scoring system. Due to these irregularities and the lack of a valid motivation for selecting a lower-scoring candidate, the WCED Recruitment and Selection Directorate declined to approve the applicant’s appointment. The decision was also based on the risk of challenges from the top-scoring and other candidates that the department would not be able to defend. As a result, the directorate authorised the post to be re-advertised to ensure compliance with recruitment policy and standards.
She also addressed the issue of the second round of interviews conducted by the SGB on 10 October 2024, stating she had no prior knowledge that these interviews had been scheduled, but did not deny the email was sent by her administrator. She said that she only became aware when she arrived at the school that day for a separate, pre-arranged meeting. Upon discovering the interviews, she confronted the SGB and confirmed that there was no written authorisation for the process. She informed them that the second round of interviews was unauthorised, legally invalid, and would have no impact on the outcome. She described their action as “highly irregular” and a clear violation of WCED policy, which strictly prohibits multiple interview rounds without prior approval.
Although the SGB went ahead with the second interviews, no scores from that round were submitted. This may have been because they likely complied with her directive.
Cross-examination
She testified that, in principle, the SGB may nominate a lower-scoring candidate, but only in narrowly defined circumstances. This is allowed only if disqualifying information emerges during the interview, such as misconduct or ethical breaches, serious enough to render the higher-scoring candidate unsuitable for appointment. She emphasised that subjective reasons, like perceived experience or better fit for the school, are not valid grounds for overriding interview scores.
Ms. Zanele Nkibi
She is the Assistant Director responsible for the recruitment and selection of institution-based educators. She has held this role since June 2016 and has approximately nine years of experience in this capacity. Her responsibilities cover several key stages in the recruitment process, starting with the vetting of all advertisements captured on the draft vacancy list before the final version is published. After applications close, she ensures that background checks are completed and that all applications and CVs are made available to the SGB for the selection process.
She is responsible for reviewing nomination documents submitted by SGBs after interviews to ensure they comply with policy, are procedurally fair, and are applied consistently. This includes checking score sheets and candidate rankings for discrepancies or irregularities. If issues are found or remain unresolved, she either sends the documents back to the SGB for correction or escalates the matter to the circuit manager for further engagement. Her oversight helps ensure that only suitable candidates are appointed and that the process is fair and legally defensible.
As to whether the HOD makes the final decision to appoint, she explained that once nomination documents are submitted and verified by the Circuit Manager, they are routed via the e-recruitment system to the Directorate of Recruitment and Selection. The final approval depends on the post level. For Post Level One (teacher) and Post Level Two (Departmental Head) posts, appointment authority is delegated to Assistant Directors, such as Ms. Nkibi. These cases are handled entirely within the Directorate without requiring a “root form” submission to the Superintendent-General. In contrast, for Post Level Three (Deputy Principal) and Post Level Four (Principal) posts, authority is delegated to the Chief Director: People Management Practices (PMP) and the Head of Department, respectively. These higher-level appointments require a “root form” to be submitted for routing and final approval.
In the applicant’s case, she did not approve the appointment because the applicant’s interview scores showed lower suitability compared to other candidates, and the SGB had submitted only one nomination, failing to meet the legal requirement of at least three. The motivation provided did not adequately explain why higher-scoring candidates were excluded. Due to this procedural non-compliance and the weaker performance of the applicant, the decision was made to re-advertise the post to ensure fairness and uphold the integrity of the process.
Cross-Examination
She explained that the delegation of powers by the Head of Department (HOD) in the recruitment and selection process for educators is both standard and legally permissible. Although the Employment of Educators Act requires that School Governing Bodies (SGBs) submit their recommendations to the HOD, in practice, the HOD delegates final decision-making authority to designated officials based on the level of the post. These delegated officials are therefore responsible for the final decision on nominations within their assigned post levels. She confirmed that this delegation framework is set out in an internal document that formally records the allocation of authority, and she indicated her willingness to make this document available if required.
She further elaborated on the legal and procedural standards governing educator appointments. She stated that, according to the Employment of Educators Act, SGBs must nominate at least three candidates for any advertised post. If they cannot, they must submit a written motivation explaining the shortfall. In the applicant’s case, the SGB failed to meet the three-candidate requirement and submitted an inadequate motivation. She assessed the submission based entirely on the documentation, and the motivation provided by the SGB did not correspond with the scoring outcomes and, in her view, contradicted the data. If the candidate had genuinely been the best fit for the school’s needs, the needs of the school should have been part of the interviewing questions and reflected in the scoring. The inconsistency raised concerns about whether the interview questions and process had been appropriately designed or implemented.
She explained that deviating from appointing the highest-scoring candidate is only acceptable if supported by a substantial and credible motivation. A minor difference, such as 5%, might be acceptable if well justified. However, in this case, the difference was 22%, which was too great to reasonably justify. General claims or unrelated factors do not satisfy this requirement.
She also addressed the issue of a second interview conducted by the SGB. She testified that she was unaware of this second interview at the time the nomination and motivation were submitted. She only learned of it after the department had already made its decision and a dispute was lodged. Furthermore, her directorate had no records of the second interview and maintained that the only valid basis for assessment was the first, officially sanctioned interview. The motivation, she concluded, did not align with those scores and therefore could not support the appointment.
Summary of written submissions.
Given the length of the parties’ written submissions, I will address the salient points in my analysis to avoid repeating the arguments both here and later in the discussion.
Analysis of evidence and arguments
The Constitution of the Republic of South Africa guarantees every individual the right to fair labour practices. This constitutional right is reinforced through section 186(2) of the Labour Relations Act 66 of 1995 (as amended) and the Employment Equity Act 55 of 1998 (as amended). Under section 186(2) of the Labour Relations Act (LRA), an unfair labour practice is defined as:
“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 or training of an employee or relating to the provision of benefits to an employee.”
Section 1(a) of the Labour Relations Act affirms that one of its primary purposes is to give effect to and regulate the fundamental rights enshrined in the Constitution. In line with section 10(a) of the Act, any party alleging that a right or protection provided under the Act, and by extension the Constitution, has been violated must present factual proof of the conduct in question. This places the burden of proof squarely on the applicant.
To succeed in a claim of unfair labour practice as defined in section 186(2)(b) of the Act, the applicant must establish that the respondent’s actions meet the legal threshold of an unfair labour practice. Furthermore, the fact that ‘promotion’ is covered by section 186(2) of the LRA does not, by any means, create a right to promotion. It only implies that an employee (i.e. Applicant for a position) has a right to be fairly considered for a promotion or appointment. In fact, it fundamentally confers a legal right to fair labour practice for appointments and promotions of employees or/officials, which is a right to be treated fairly in the process of promotions or appointments (see Hlope v Head of Department: Department of Education KZN and Others (D755/2021) [2024] ZALCD 4; (2024) 45 ILJ 805 (LC) (18 January 2024).In other words, the responsibility lies with the applicant to present a clear and substantiated case, backed by evidence, demonstrating that the respondent’s decision not to appoint her amounts to an unfair labour practice. It is not enough for the applicant to simply be unhappy with the result of a recruitment or selection process. A mere sense of dissatisfaction or disagreement with the outcome does not meet the legal standard for unfair labour practice. The applicant must provide a credible evidentiary basis that shows the respondent acted unfairly within the meaning of section 186(2).
At the same time, the employer has a duty to present evidence showing that it acted fairly and in good faith during the promotion process. This responsibility exists regardless of who carries the burden of proof in the dispute. If the employer fails to provide such evidence, it would be unreasonable and irrational to simply assume that its actions were fair. The court in Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT, delivered on 9 May 2018, confirmed this principle. However, it remains true that the final decision to appoint a candidate falls within the employer’s discretion. In Justice v CCMA & Others (2004) 25 ILJ 248 (LAC); [2004] 4 BLLR 297 and Goliath v Medscheme (Pty) Ltd [1996] 5 BLLR 603 (IC) at 609–610, the courts clarified that:
“Inevitably, in evaluating various potential candidates for a certain position, the management of an organization must exercise discretion and form an impression of those candidates. Unavoidably, this process is not a mechanical or mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness, which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion.”
While employers have the discretion to appoint, this discretion is not absolute or immune from oversight. Courts may intervene when there is clear evidence of irrationality, bad faith, or gross unfairness in the exercise of this discretion. Any such interference, however, must aim to uphold fairness, both to the employee and the employer, and not merely second-guess managerial decisions.
In City of Cape Town v SAMWU obo Sylvester and Others (C1148/2010) [2012] ZALCCT 40; (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC), handed down on 7 September 2012, the Labour Court reaffirmed, with reference to the Arries v CCMA & others (2006) 27 ILJ 2324 (LC) judgment, that the decisive standard in promotion disputes is fairness. When determining whether an employer acted fairly in refusing or failing to promote an employee, the court identified several relevant factors to consider:
(a) Whether the refusal to promote was influenced by unacceptable, irrelevant, or discriminatory considerations;
(b) Whether the employer failed to apply its mind properly to the employee’s promotion;
(c) Whether the employer acted arbitrarily or capriciously;
(d) Whether there were no sound or substantial reasons for the employer’s decision;
(e) Whether the process was conducted in a biased or procedurally flawed manner.
The judgment highlights that the decision to promote hinges not just on the final outcome, but on the fairness of the process and reasoning behind it. In line with this, the Labour Appeal Court in Apollo Tyres South Africa (Pty) Ltd v CCMA and Others (2013) 34 ILJ 1120 (LAC) confirmed that what matters is whether the process followed by the employer was fair. The focus is on how the decision was made, not whether the employee was ultimately not appointed.
In this case, the applicant’s claim of unfairness centres on the intervention by the Directorate: Recruitment and Selection, which halted her appointment as Department Head and readvertised the position. This intervention occurred despite the School Governing Body (SGB) having nominated her as the most suitable candidate for the position.
In the written submissions, the applicant representative argued that the SGB, acting within its statutory powers under the South African Schools Act and the Employment of Educators Act (EEA), conducted a legitimate and thorough recruitment process. While it was acknowledged that the applicant scored lower than other candidates, the representative argued that the SGB gave detailed, well-founded reasons for selecting her. These included her proven management experience, practical application of knowledge, real-world responses during the interview, and strong alignment with the school’s ethos and long-term goals. The representative added that all shortlisted candidates met the minimum requirements but stressed that the SGB was entitled to consider more than just scores, specifically, who was the best overall fit for the school’s unique context.
However, the fact that the SGB recommended the applicant, citing her experience, practical knowledge, skills, and alignment with the school’s ethos and long-term goals, does not, on its own, establish an unfair labour practice. The applicant still carries the burden of proving that the Directorate: Recruitment and Selection acted unfairly in intervening and halting her appointment. As confirmed in Ndlovu v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1653 (LC) at 1655–1656 (paras 11–12), an employer’s decision cannot be deemed unfair if it is rational and grounded in legitimate reasons. The legal test is not whether the applicant or even the SGB believed she was more suitable, but whether the Directorate’s actions were both procedurally and substantively unfair. In this regard, the applicant representative raised three main arguments regarding the Directorate: Recruitment and Selection acted unfairly in rejecting the SGB’s nomination.
First, it was argued that the rejection was made without any clear justification based on law or policy. Section 6(1)(b) of the Employment of Educators Act 76 of 1998 (EEA) gives final appointment authority to the Head of Department (HOD), not to individual officials, and this power must be exercised fairly, representatively, and in line with due process. Additionally, Section 6(3) of the EEA states that appointments may only be made on the recommendation of the SGB. Ms. Zanele Nkibi, the respondent’s witness and delegated authority at this post level, failed to identify any legislative provision allowing her to override a properly motivated SGB recommendation.
Second, the applicant contended that Ms. Nkibi did not properly engage with or evaluate the SGB’s submission. She failed to give it the level of consideration and scrutiny required by her position. This lack of engagement, combined with inconsistent testimony, especially from Circuit Manager Ms. Otto regarding a second round of interviews, suggested that the rejection of the applicant’s nomination was arbitrary, defensive, and driven by administrative convenience, rather than a fair and rational evaluation.
Lastly, the applicant argued that the respondent’s concern about facing a potential dispute does not justify disregarding a lawful and well-founded recommendation from the SGB. This was framed as an abuse of discretion and an unfair labour practice. Referring to ELRC Collective Agreement 3 of 2016, the applicant acknowledged there is no automatic right to promotion but emphasised the right to fair consideration. That includes assessing qualifications, experience, and interview performance, not just raw scores. Ignoring these principles rendered the decision to reject the nomination irrational and unlawful.
Regarding the applicant’s representative submission that Ms. Zanele Nkibi, Assistant Director in the Directorate: Recruitment and Selection, lacked the authority to intervene in the appointment process or reject the School Governing Body’s (SGB) nomination, and this power is vested with the HOD, the following is noted. Section 6(3)(b) of the EEA provides that the Head of Department (HOD) must, after considering the SGB’s recommendation, either make an appointment or take any other appropriate action. While the EEA assigns this authority to the HOD, it does not prohibit delegation. The applicant could not provide any evidence to gainsay the testimony of Ms Nkibi that the HOD has delegated final decision-making powers for Post Level 1 and 2 positions to Assistant Directors.
As to the applicant’s submission that in rejecting the SGB’s nomination, Ms. Nkibi failed to properly consider the information submitted by the SGB when rejecting its nomination, is without merit. The evidence does not support this allegation. In fact, Ms. Nkibi testified that the Directorate reviewed the SGB’s motivation in light of the official scoring records from the first round of interviews, which were the only records available to the department.
Likewise, the argument that inconsistencies in testimony, particularly from Circuit Manager Ms. Otto regarding a second round of interviews, rendered the decision arbitrary or driven by administrative convenience rather than a fair assessment of merit is not supported by the evidence. It was not in dispute that no records were submitted to the Directorate of Recruitment and Selection for the second interview at the time of the rejection of the nomination. The Directorate had not been informed of any second interview, nor did it give authorisation for a second interview. The second interview, rather than legitimising the SGB’s nomination, in fact reinforces the conclusion that the process was procedurally irregular.
The credibility and transparency of the selection process were further undermined by the testimony of Circuit Manager Ms Otto, who confirmed that the email inviting the applicant to a second interview originated from her office. Although she claimed to have had no knowledge of the email, despite being copied in it, this raises concerns about her oversight and overall accountability. However, it is significant that she did inform the SGB that conducting a second round of interviews would be improper and procedurally irregular. Her account of what transpired upon her arrival at the school, including the discussion she had, was not disputed by the applicant and remains uncontested. Therefore, the fact that the SGB proceeded with the interview regardless, and that this second interview was not disclosed to Ms Nkibi’s office or recorded in the official documentation, casts serious doubt on the integrity of the evaluation process. The second interview, therefore, amounted to a parallel, informal and unaccountable process.
The applicant’s representative argued that the scoring outcomes should be disregarded, claiming they did not reflect the applicant’s true suitability for the position. However, the scoring results cannot be easily set aside. The IC had unanimously resolved that the candidate nomination would be based on a combination of discussion, interview scoring, and consensus, implying a balanced and transparent process in which each element carried weight. The scores revealed clear inconsistencies. The applicant scored significantly lower than other candidates, who achieved much higher results, but she was nominated as the best candidate and the only candidate for the appointment. The SGB attempted to explain this by asserting that the applicant was better suited to the school’s specific context. However, the agreed framework by the IC was not honoured in the final decision. The nomination of the applicant directly contradicted the scoring component of the process. By proceeding to recommend a candidate whose score ranked joint last, the SGB effectively disregarded a central element of the decision-making process they had committed to, undermining the integrity and rationality of their decision. It should also be noted that both parties were advised to call a member of the interview committee to clarify the rationale for the recommendation and confirm whether the relevant questions were asked during the interviews. Both declined and stated that the matter should be determined solely based on the written motivation they submitted.
Ms. Otto and Ms Nkibi rightly pointed out, if those contextual qualities were indeed critical to the role, they should have been formally built into the interview design, through clearly framed questions and criteria that allowed candidates to be assessed accordingly. The failure to do so meant that the interview process did not validly test the very competencies later claimed to be decisive. To claim, post hoc, that scoring did not reflect suitability because it prioritised irrelevant departmental standards is not a credible justification. It instead signals a misalignment between the process design and the selection rationale, which disadvantaged the candidates who participated in the interview process.
Moreover, both Ms. Otto and Ms. Nkibi testified that selecting a lower-scoring candidate is permissible only in exceptional cases, such as where disqualifying information emerges during the interview that would render a higher scorer unsuitable, instances such as ethical breaches or past misconduct. The applicant did not dispute this evidence, nor were any concerns raised about the top-scoring candidates in this matter. Instead, the SGB relied on subjective claims about community alignment and practical teaching style, factors not objectively tested or compared across candidates. This selective elevation of one candidate’s attributes, without applying the same lens to others, not only violates the principle of parity of evaluation but also weakens the legitimacy of the consensus claimed by the IC. The respondent was therefore correct to question the reliability and lawfulness of the SGB’s motivation, which lacked both procedural and comparative justification.
The interview process was fundamentally flawed from the outset, and the respondent’s rejection of the applicant’s nomination was not irrational and unlawful as claimed by the applicant. I find that the respondent’s submission that the decision of the SGB to nominate the applicant was flawed had merit.
The respondent submitted that the decision to reject the nomination and restart the process was justified by the need to uphold merit-based selection, ensure fairness to all candidates, and comply with relevant policies and legal standards. I find this submission is well-founded. The SGB referenced employment equity considerations to support its decision, but failed to apply this consideration in a structured or principled way. The relevant provision in the EEA is section 7(1), which addresses employment equity and related constitutional values in the appointment process. It reads as follows:
“In the making of any appointment or the filling of any post on any staff establishment under this Act, due regard shall be had to equality, equity and the other democratic values and principles enshrined in the Constitution.”
While section 7(1) of the EEA requires that due regard shall be had to equality, equity and the other democratic values and principles enshrined in the Constitution, when appointments are made, this does not authorise arbitrary or inconsistent application. The SGB did not explain how appointing the applicant, a female, would advance transformation more effectively than appointing another female who scored higher and who, by national demographic standards, might fall within a more underrepresented category in senior educational roles. The vague and unsupported reference to equity thus rings hollow and cannot reasonably justify the departure from the agreed process.
Conclusion
The legal standards set out in the City of Cape Town v SAMWU case, and the Apollo Tyres case referred to earlier, affirm that the decisive question is not whether the candidate was entitled to be appointed, but whether the employer’s decision-making process was fair. Fairness in this context is holistic; it considers both the reasoning, and the processes used to reach the decision, not merely the outcome. In this context, the respondent’s decision to reject the nomination was not an arbitrary or capricious decision-making, failure to apply their mind properly, or driven by administrative expediency. It was a proportionate response to serious procedural defects, namely, the failure to follow the established procedure, the unexplained deviation from scoring, the lack of comparative motivation, the superficial treatment of employment equity and the unauthorised use of a second interview, all point to an interview process that was procedurally irregular and incapable of supporting a lawful appointment.
In the totality of the matter, I find that the applicant failed to show that the respondent acted arbitrarily, unreasonably, or in bad faith. The decision to reject the recommendation or nomination from the SGB was rational and fair. Accordingly, the Directorate: Recruitment and Selection was justified in exercising its delegated power by intervening in the appointment process and rejecting the SGB’s nomination of the applicant.
As a result, I make the following award below.
Award
The applicant failed to discharge the onus of proving that the respondent had committed an unfair labour practice within the meaning of section 186 (2) of the Labour Relations Act, by not appointing the applicant to the position of Department Head.
The applicant’s case is dismissed.