Panelist: Ncumisa Bantwini
Case Number: ELRC703-25/26EC

Date of Award 25 August 2026

IN THE MATTER BETWEEN

Nosicelo Mhlakaza : Union/Applicant

AND

Department of Education – Eastern Cape : 1st Respondent

Ms. Nompumelelo Gwele : 2nd Respondent

DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was part heard on 20 April 2026, 29 July 2026 and was finalized on 30 July 2026 in the respondent’s offices at Trinset in Mthatha. 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).
2. Mrs. Sapokazi Gazi of SADTU appeared for the applicant. Mr. Siyabonga Gashi appeared for the 1st respondent, the Department of Education-Eastern Cape while Mr. Lindile Matyumza of SADTU appeared for the 2nd respondent, Ms. Nompumelelo Gwele who was also in attendance. Parties agreed to submit written closing arguments on 07 August 2026. No submission was received from the 1st respondent until the submission of the award. All arguments have been considered in the preparation of this award. ISSUE TO BE DECIDED
3. The issues to be decided is whether the respondent’s conduct in not appointing the applicant to a position of a Departmental Head at Mthatha Community School in Mthatha was fair or not.
4. 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
5. The applicant referred a dispute to the ELRC regarding an alleged failure by the respondent to shortlist her to the position of a Departmental Head at Mthatha Community School. When the dispute could not be resolved at conciliation level, the applicant filed a request for arbitration through her union. SURVEY OF EVIDENCE AND ARGUMENT Applicant’s case
6. According to Mrs. Gazi ‘s opening statement, the dispute relates to unfair labour practice based on promotion. The applicant applied for a position of a Departmental Head at Mthatha Community School and was not shortlisted. The incumbent does not meet the qualifications for the position. The remedy sought is the appointment of the incumbent to be set aside.
7. The applicant, Ms. Nosicelo Mhlakaza testified under oath as follows:
8. She works for the respondent and she applied for the position of Departmental Head at Mthatha Community School which was advertised. She has 23 years teaching experience The incumbent does not qualify for the position as she does not have qualifications to teach at foundation phase.
9. The incumbent had 10 years teaching experience. She (the applicant) taught at foundation phase at Empa JSS while she was still employed on temporal basis by the respondent. Among her qualifications, she possesses teaching Method which the incumbent does not have.
10. The applicant testified further that ratification process was not properly conducted by the entire SGB. The incumbent does not qualify for the position as they were both teaching at senior phase (grades 7 and 9).
11. Under cross-examination by Mr. Gashi, the applicant testified as follows:
12. She possesses Matric SPTD and BED Hons as her qualifications. She meets all the requirements of the position (pages 120 and 134). She has taught at foundation phase when she was a temporal teacher and she meets the requirements of the position. She does not have Life skills as it is a new subject.
13. The applicant did not respond when it was put to her that the incumbent does have teaching method as well as qualifications as required in terms of the advertisement and has numerous teaching awards for the foundation phase (pages 32 to page 37).
14. Under cross-examination by the 2nd respondent, the applicant testified that she possesses Senior Primary Teachers Diploma SPTD. She did not respond when it was put to her that she does not qualify to teach in foundation phase. She was phased out during the shortlisting stage because of the set criteria by the panel.
15. Under re-examination, the applicant stated that she has 23 years teaching experience and the incumbent has 10 years’ experience and SPTD and BED Hons and that qualifies her to teach at primary school.
16. The applicant ‘s witness, Ms. Qaqamba Mabandla testified as follows:
17. She works at Mthatha Community School as an Administrative Clerk for 18 years and she is a member of SGB, representing non-teaching staff. Her role is to capture the details of the staff/teachers. She knows that the applicant qualifies for the position and can teach at primary school. She was not part of the selection panel for the advertised position. She was part of the ratification process when the entire SGB was advised that everything went well.
18. Under cross-examination, by the 1st respondent, the witness testified that she heard that the incumbent was at some stage placed at the senior phase. She agreed that the incumbent possess BED Hons as well as Post graduate certificate in Education that qualifies her to teach at foundation phase. She can see the National Teaching Awards in foundation phase/primary school (pages 32 to 37).
19. The witness did not respond when it was put to her that Ms. Gwele was the appointed as she was the best suitable candidate and that she (the witness) did not even participate in the selection process.
20. Under cross examination by the 2nd respondent’s representative, the witness stated that she represents the non- teaching staff in the SGB and that Ms.Gwele is not part of SGB. She is a clerk at the school and she was not elected to be part of the selection panel for the advertised position. She was part of the ratification process. Mr. Qokoyi was the Deputy Principal when Ms.Gwele was appointed to the position and currently, he is the principal.
21. In closing, Mrs. Gazi argued as follows:
22. The failure of the 1st respondent to shortlist the applicant was unjust and the resource person failed in his duty to provide guidance to the selection panel. Ms.Gwele does not qualify to teach in foundation phase hence a decision to move her to senior phase was made. Appointing the incumbent as the HOD-in foundation phase is not in the best interest of the child. Mrs. Gazi finally submitted that the appointment of the incumbent must be set aside.

The 1st Respondent’s case

23. Mr. Gashi, the 1st respondent’s representative, stated in his opening statement that the process of appointment of the 2nd respondent was conducted fairly and all necessary procedures were followed. The applicant was not shortlisted because an additional criterion that was introduced by the SGB or panel of the selection committee ((ICT) and teaching experience in foundation phase). The incumbent met all the qualifications for the position and she was appointed the incumbent obtained a National Teaching Award in teaching in foundation phase.
24. The witness for the 1st respondent, Mr. Eulita Qokoyi testified as follows;
25. He works for the respondent as a Principal since February 2026. He was the Deputy Principal during the recruitment of the HOD position and he was the resource person. He knows both the applicant and the incumbent as they teach at Mthatha Community School. Ms. Gwele was shortlisted, interviewed and appointed to the position. The applicant did not meet the requirements of the position hence she was not shortlisted.
26. According to the set criteria ICT and the experience in teaching at foundation phase was added as a criterion for shortlisting. The applicant is teaching Mathematics at senior phase. Ms.Gwele was the best suitable candidate for the position hence she was appointed. Her transcript appears in page 27 of the bundle. She has BCom Hons and Senior Primary Teachers Diploma (SPTD) which qualifies her to teach at foundation, intermediate and senior phases. She obtained awards in primary teaching which were awarded by the 2 MEC’s for Education (pages 32 to page 37). Gwele was only moved to senior phase when there was a shortage of teachers.
27. Under cross-examination by Mrs. Gazi, the witness testified as follows:
28. All panelist members were trained before the selection process started including Mr. Ketile who replaced Mr. Cotela who was bereaved. The entire SGB was present at the ratification stage.
29. Under cross-examination by the 2nd respondent’s representative, the witness testified as follows:
30. The applicant does have SPTD and BED Hons degree which qualifies her to teach at foundation, intermediate and senior phases. Ms. Gwele is an assert in the school as she can teach at foundation as well as at senior phase. She has National Teaching Awards and she cannot be compared to any teacher in the Eastern Cape.
31. Under re-examination the witness stated that he has never seen the applicant teaching at the foundation phase at the school. The 2nd respondent’s evidence
32. According to Mr. Matyumza’s opening statement, Ms. Gwele deserves to be appointed to the position as advertised as she meets the requirements for the position.
33. Ms. Nompumelelo Gwele, the incumbent testified as follows:
34. She works for the 1st respondent as a Departmental Head since 2025. She started working at the school in foundation phase from 2016 until 2020. During covid in 2021, she was moved to senior phase because of shortage of teachers. She possesses BCom Hons as well as the SPTD which qualifies her to teach all the phases. She obtained National Teaching Awards in foundation phase (pages 32 to page 37). She stated further that she applied for the position when it was advertised as she believed she was ready. She was shortlisted, interviewed and appointed to the position.
35. Under cross-examination, the incumbent testified that she does not dispute that the applicant has more teaching experience. She was interviewed and recommended for appointment in the position of departmental head. She excels in teaching in any phase as she was trained to teach all the phases (page 29). When she started at the school, she applied to teach Grade 3/foundation phase and she has been in the school for 11 years. She was the best suitable candidate for the advertised position of HOD and her track record speaks for her. The minimum requirement for the position is 3 years. She has ICT skills/Integrated computer Technology and was nominated as the ICT Champion, teaching learners about the devices, visual aid, play based learning and demonstrations.
36. Under re-examination, the incumbent stated that her transcript appears on page 29 and it talks to what she has applied for.
37. In closing, Mr. Matyumza argued as follows;
38. Both the 1st and 2nd respondents believe that correct and proper procedures were followed in appointing the 2nd respondent. The incumbent met the requirements of the position hence she was recommended unanimously by the SGB for appointment to the position. Mr. Matyumza finally argued that the applicant failed to prove unfair labour practice against the 1st respondent and that her application must be dismissed. ANALYSIS OF EVIDENCE AND ARGUMENTS
39. 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 Mthatha Community School in Mthatha.

• That the applicant was not shortlisted and interviewed.

• That Ms. Gwele was recommended by the SGB and appointed as the best and suitable candidate for the position.

• That the position was profiled by the SMT and was endorsed by the SGB before it was advertised.

40. It must be noted that the applicant conceded under cross-examination that she does not have ICT and Life Orientation in her qualifications although she has 23 years teaching experience.
41. It is the respondent’s case that the selection process was fairly conducted in terms of the prescripts of the respondent (PAM and ELRC CA 5 of 1998 as well as PELRC CA 2of 2002) as the qualifying candidate was appointed.
42. 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”
43. See also in Buffalo City FET College v CCMA and others (P 372/12) [2016] ZALC CPE 18 handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotion, the onus is on the Employee to prove that she/ he is a suitable and better candidate for the position in question”
44. It appears from the party’s evidence that the 1st respondent followed a fair procedure in appointing the best suitable candidate for the position of Departmental Head- at Mthatha Community School and as such did not exercise its prerogative in a biased, unfair, capricious and unjust manner in appointing Ms. Nompumelelo Gwele to the position.
45. The applicant has failed to discharge the onus to prove the claim of unfair labour practice based on promotion on balance of probabilities by the respondent.

AWARD
46. I therefore make the following award:

There is no order as to costs

The appointment of the incumbent, Ms. Nompumelelo Gwele by the respondent, the Department of Education – Eastern Cape was both procedural and substantively fair.

The 1st respondent, the Department of Education –Eastern Cape cannot be compelled to nullify the appointment of Ms. Gwele.

The applicant, is therefore not entitled to any relief.

The application is dismissed.

Signature

Ncumisa Bantwini

ELRC Panelist