IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD VIA DIGITAL ZOOM CONFERENCE

Case No: ELRC679-25/26WC

In the matter between

Solidarity obo Shaun Jacobus Landman Applicant

and

Department of Higher Education – Boland TVET Respondent

PANELLIST: Dr. GC. van der Berg.
Date of Award: 25 February 2026ARBITRATION AWARD

Details of hearing and representation

1. The arbitration was held on 07 November 2025 at 09:00 via digital video conference (Zoom) as well as on 02 February 2026 at 09:00. The applicant, Shaun Jacobus Landman, was represented by Shantal van der Merwe from Solidarity. The respondent, Higher Education – Boland TVET, was represented by Danny Plaatjies. The successful candidate, Seymore Bothman, was not present as she has not yet joined and has no interest in the outcome of this dispute. The arbitration proceedings were digitally recorded as well as written notes were taken.

Issue to be decided.

2. The arbitration proceedings concerned the alleged unfair labour practice by the respondent against the applicant that he was not shortlisted after he applied for the acting position. He acted in the post twice before and he was not shortlisted contrary to policy, and he was informed his application form was invalid and incomplete.
3. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) by not shortlisting and/or appointing the applicant in terms of Section 186 (2)(a) of the LRA in the acting position of Acting Program Manager: Education Specialist: Safety in Society (Pl.2) Caledon Campus: (a) Whether the applicant must be appointed in the acting position.
4. In terms of appropriate relief if I find that the first respondent committed an ULP: (a) Whether the applicant receives compensation as he suffered financial and/or other prejudice for the duration of the acting period (10 months). Background to the Dispute
5. The applicant has been appointed as a Lecturer (Level 1) in January 2017 at the Department Higher Education 7 Training, Boland TVET College in Worcester, Western Cape. The applicant applied twice in 2020 and 2022 for the same acting position, and he was appointed and paid accordingly. When the same acting position was again internally advertised in 2025, he applied for the acting position, and he was not shortlisted by the respondent and not interviewed contrary to policy, and he was informed that his application form was incomplete and invalid.
6. The dispute arose on 02 September 2025 and was referred to the ELRC on 16 September 2025 and set down for conciliation on 15 October 2025, where a certificate of non-resolution was issued. The arbitration hearing was set down for 07 November 2025, and all parties were present. The pre-arbitration minutes was not discussed between the parties and the issues in dispute were narrowed down during the arbitration. After the applicant testified and was cross examined by the representative of the first respondent as well as one of the witnesses of the respondent, the arbitration process was postponed as a part heard arbitration because three (3) other witnesses of the respondent must still testify. It was then set down for 05 February 2026 due to closure of the TVET College for December/January holidays. The parties did present opening statements and the representative of the respondent, and the representative of the applicant presented written closing statements on 12 February 2026 as agreed on 05 February 2026. All parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity, the details of this will not all be repeated in the award, but it should not be construed that it was not considered.

Survey of evidence and argument

Documentary evidence.

7. Both parties submitted bundles of documents. The bundle of the applicant was marked as “A” pages 1-152 and the bundle of the respondents as “R” pages 1-72. All parties did not dispute the authenticity of the content of the bundles.
   Applicant’s evidence and arguments
   The applicant, Shaun Jacobus Landman, after having been sworn in, testified as follows:
8. He is employed in the position as a Level 1 lecturer at Boland TVET College and the advert for the acting position appears on page 84 of bundle “A” for the post: Educator Specialist Safety in Society (PL.2) Caledon Campus with reference number CAL/BC/ACT/PM/01/25. The applicant applied for the post via email and the reference number correspond with the one on the advertisement. There was an attachment to the application form as can be seen on pages 87 and 88 of bundle “A” and on page 89 was the relevant documentation and certificates. On page 84 in the advert there were nine (9) requirements and five (5) recommendations. The requirements were: (1) At least a relevant recognised three-year qualification (REQV13); (2) Qualifications in Education and Training; (3) Minimum 2-3 years teaching experience; (4) Qualified to lecture subjects in the relevant programme; (5) Experience in Blended learning, i.e. innovative teaching practices with the use of educational technology; (6) SAGE registration; (7) Proven Computer training in MS Office; (8) Valid drivers license; and (9) Good communication skills (verbal and written). The recommendations were: (1) Registration as an Assessor//Moderator; (2) TVET sector experience; (3) Teaching or Training experience in the industrial environment; (4) Multilingualism will be an advantage; and (5) Program Leader experience.
9. The applicant agreed that he met all the mentioned requirements as he is in possession of a BA degree from UNISA that he obtained in 1995 as can be seen on page 88. On page 92 reference is made to the BA degree and his degree certificate is attached on page 100. Secondly, he obtained at Northwest University a Diploma in Education in 2016 and his CV shows the professional diploma, and the proof is attached on page 103. Thirdly he had teaching experience at Eastgate Midlands College, Graaf-Reinet Campus from 2010 to 2017 and at Boland College Worcester Campus from 09 January 2017 till present. Fourthly he is qualified to lecture subjects in the relevant programme, and he referred again to his BA degree, and the subject is listed on page 92, and 101 of bundle “A”. He also met the fifth requirement as in 2018 he had blended learner training. Regarding the sixth requirement of SACE registration his registration certificate with SACE can be seen on page 106 received on 19 January 2024. He however did not include the SACE registration to his application form. Regarding the MS Office training it can be seen on page 88 and page 92 of his CV, and he did IT and MS Word. Again, he did not attach it to his application form as it is contained in his CV and application form. He attached a copy of his driver’s licence, and it can be seen on page 89 of his CV. He is bilingual as he speaks and write in English and Afrikaans and can speak a little bit of IsiXhosa.
10. He stated that the difference between requirements and recommendations is that requirements is a must and recommendations is a may have it. Firstly, regarding the recommendation one he completed the training of Assessor/Moderator through Boland College in 2019 as there was no space in the application form to stipulated it. It was mentioned on page 92, and he did not attach a copy to the application. In 2020 he applied for the same position, and he was shortlisted and did not attach a copy of the Assessor/Moderator training. On pages 148 to 151 of “A” is a certificate of completion of assessor training and on page 148 is a statement of results. On page 150 is the moderator training and he completed it and the results appear on page 150 on 07 February 2022. Secondly regarding TVET sector experience he complied as can be seen on page 88 his experience at TVET colleges. Regarding the third recommendation he worked at the SAPD and attended the SAPD college, and his training and experience was from 1991 to 2002, and he obtained experience in the industrial environment. Regarding recommendation four he is bilingual but not multilingual and it was stated on pages 88 and 89. He was acting program leader in 2018 and 2019, and he was acting in the same position on PL.2 up to July 2022. He did not attach this to his application form, but it was stated.
11. The applicant read as follow on page 84: “The acting allowance is calculated on the difference between the employee’s current present salary notch (without benefits) and the commencing notch (without benefits) of the senior position post on condition that the post is one level higher”. The salary slip of the applicant on page 19 confirms the salary without benefits as R24 626-25 per month. The same amount is confirmed in an advert on page 142 to 144. The difference between the salary of the applicant and the salary notch on PL.2 is R11 643-75 per month and the contract period on page 84 is up to 31 December 2025 or until the post is filled permanently. The successful candidate commenced on 17 April 2025 and in the email page 113 on 19 March 2025, the candidate’s name is announced. The post is filled as the permanent appointed candidate is in the office, but the acting candidate is only completing his term on 31 December 2025. The applicant expected to be paid the monthly amount mentioned for ten (10) months.
12. The applicant stated that in 2020 the Head of Department position was advertised on 29 June 2020 as can be seen on page 37 and he applied and he was not yet registered as assessor and moderator, but he was shortlisted and invited for an interview. On page 38 the same position as in 2025 was advertised in July 2020. Again, the assessor and moderator certificates were not attached but he referred to it in his CV, and he was invited for an interview and successfully appointed. On page 63 is an email sent to the applicant to invite him for the interview of the mentioned position. Page 64 is an email sent to the applicant on 10 September 2020 after he attended the interview indicated that he was successful and he filled the acting post at Worcester Campus. On page 65 appears his appointment letter on 08 September 2020 and on page 67 is the same advert for the position in 2022. He was successful and received his appointment letter on 01 March 2022 at Caledon Campus and it was signed by the HR Manager.
13. The applicant stated that on page 20 of “A” appears the Recruitment and Selection Policy and in 4.2 the selection process is set out. Shortlisting is on page 30 and in 4.3.2.5 it states: “Applicant(s) who meet the minimum requirements of the post and had an opportunity to act in the same vacant position must be shortlisted in the selection process provided they were duly appointed by the appending/delegated authority”. The applicant met the minimum requirements, and he acted in the same vacant post in 2020 and 2022. He was in 2025 not shortlisted as per their policy, but he was supposed to be shortlisted, but they said that he did not adhere to the policy. The respondent did not give reasons why the applicant did not comply but only stated it in the response to his grievance. On page 113 is a copy of an email where the acting Program Manager was introduced by Annelize van Zyl on 19 March 2025.
14. The applicant stated that he started to made inquiries in this matter with the HR clerk in Caledon and on pages 116 is an email on 24 March 2025 from Gainor King indicated that his application did not meet all the necessary requirements set out by the panel. On page 117 he sent an email indicating that he just heard that the acting post had been filled and the reply was on page 116. He informed them on 26 March 2025 about the HRM procedure, and he requested a copy of the shortlisting minutes, and he was told that it was not recorded. On 26 March 2025 he was informed that the HR Head will assist him further. He received a letter from the HR Head on 27 March 2025 indicating that she has scrutinised his application versus the requirements and recommendations on the job advert. He did not attach the assessor/moderator certificate to his application form. Therefore, he did not meet the requirements to be shortlisted. He kept on requesting information and not any satisfactory answers were given.
15. He submitted his grievance as can be seen on page 125 of “A” on 17 April 2025 and the nature of his grievance that he was unlawfully excluded from the shortlisting process as there is a vast difference between requirements and recommendations. He completed the assessor and moderator courses, and he met the minimum requirements for the acting post as he acted previously twice in the same capacity. After his grievance he went to the HOD and inform them and he was referred to the office of Human Resources, He at first handled it informally and afterwards formally. On page 119 onwards is the Grievance Procedure document of Boland College and on page 121 at stage 1 under informal settlement it states: “The employee involved must first raise the grievance verbally with his or her immediate supervisor or manager as soon as possible after the incident giving rise to the grievance but in any event not later than 90 days from the date on which or when the employee became aware of the incident or act or omission”. On page 131 of “A” is a report on stage 1 of the grievance form dated 19 June 2025 indicating that a grievance enquiry was conducted on 03 June 2025. The chairperson of stage 1 stated that he is of the view that the interview panel did not unfairly prejudice the aggrieved employee (applicant) and that the process was in accordance with the Recruitment and Selection Policy. The applicant explained the grievance meeting in more detail. He stated his case to them and the committee members said that the assessor and moderator certificates were not attached to his application form.
16. Page 135 of bundle “A” represents the minutes of his grievance stage 3, and the chairperson was Charles Goodwin on 12 August 2025. The applicant explained what happened and he was unhappy that he was excluded from the shortlist for the acting position as he met all the requirements and recommendations as he previously was a candidate in 2020 and 2022, that he acted before, and he must have been shortlisted. On page 140 of “A” appears the outcome of the grievance stage 3. The chairperson finds the grievance the applicant lodged to be invalid as the applicant acknowledged that he did not submit the assessor/moderator certificates while it was listed as a recommendation. The panel was acting fully within its mandate and was procedurally correct to score candidates on both recommendations and requirements. The applicant stated that he does not agree with the aforementioned. He stated that he downloaded the Policies and Procedures from the intra-system, and it states that if a person acted before with the submission of the respondent, he/she must be shortlisted again.
17. On page 108 to 110 of “A” appears the shortlisting criteria and on page 110 the form that A Van Zyl used for scoring on 18 February 2025. On page 111 is the record of the shortlisting meeting and the criteria in the shortlisting is like the criteria in the advertisement. The cutoff score was determined as 11 and the applicant mentioned the scores he received on the criteria, and he did not agree with it. He also referred to the criteria for equity like Coloured and Black Males and Females on page 70 to 76 of bundle “A”. He gave the scores on every criterion, and he stated in his application form that he is bilingual but not multilingual and this was not an inherent requirement of the post. On page 152 of “A” appears the PMS Boland College Language Policy, and on page 153 it states under paragraph 5.3 as follows: “No unfair discrimination may occur towards any staff member or student who is proficient in only English or only Afrikaans or is proficient in only these two languages”. The applicant stated that the shortlisting criteria is not regarded as fair and if the applicant added his own score, he gets 16 against the 10 as given to him by the shortlisting panel. He concluded that the panel unfairly treated him in the scoring, and he should have been shortlisted and afforded an opportunity to act again in the position. As a result of him not shortlisted and appointed it had a financial implication on him.
18. On page 23 of bundle “A” under the principles of the Recruitment and Selection Policy the panel did not comply with fairness as they were not transparent and professional in their action. On page 28 in paragraph 4.2.1.1 it states: “Selection and assessment process should be credible, consistent, fair and transparent”. The applicant seeks compensation for ten (10) months, and his assessor and mediator certificates appears on pages 148 and 151 to show that he is in possession of it.
19. Under cross-examination by the representative of the respondent, he confirmed that he did blended training as all employees were trained on the noodle system and the content was put in a folder, and he used it as Campus Manager and when he was Head of the Department at previous similar institutions. It was part of Boland Campus training in 2018, and his files can be checked as he used blended learning. He stated that all the requirements in 2020, 2022 and 2025 advert mentioned multilingual but only as a recommendation and he is only bilingual, and he met the minimum requirements. He registered with SACE on 19 October 2024 as can be seen on page 106 of bundle “A” and the subscription is deducted from his payslip. He was acting in the post in 2020 and 2022 without a SACE certificate. He was reminded that he took vacation leave on 25 June 2025 and said he did not find a date for the enquiry on his grievance as the respondent did not stick to the mentioned five (5) days as stipulated. He agreed he was informed about the unavailability on his suggested date. He participated in the third stage of the grievance, and it was found against him. He stated that he did not decide before the time that the outcome would be unfair, but it seems the lightly outcome. He disagreed on the statement that he did not approach the process with an open mind, but the chairperson made his decision.
20. He was referred to the scoring on pages 108 to 111 in bundle “A”, and he stated that he mostly complied and sometimes he exceeded compliance. He was further referred to page 84 of “A” which also states that incomplete applications will not be considered, and he acknowledged it, but his application was previously approved, and he did not attach all the documents in 2020 and 2022. He agreed that the shortlisted panel in 2020, 2022 and 2025 were not all the same members and he received the shortlisting via email after requesting it.
21. Under re-examination the applicant stated he did not provide proof of blended learning in his previous application and appointments, and it is not compulsory at Boland TVET College. He confirmed the requirements of the acting post appear on page 84 in the advertisement and SACE registration is one of the requirements. The applicant was not informed before he lodged a grievance that his application form was invalid, and his application was thrown out due to a lack of presenting his assessor and moderator certificates.

Respondent’s evidence and argument

The respondent called four witnesses to testify.
The first witness, Africa Tshone, former Campus Manager of Caledon Campus, after having been sworn in, testified as follows:

22. On pages 16 to 18 appears the grievance form of the applicant stage 1 and it states on page 16 that: “The employer stated that the panel in compiling the shortlisted criteria agreed that the minimum score of a candidate had to obtain to qualify for an interview was a threshold score of 11 out of 18, but unfortunately, the aggrieved employee did not obtain the minimum threshold score”. The witness stated that pages 17 and 18 is a true reflection of what happened. The shortlisting criteria was determined by Human Resources and in the process the panel looked at the advertisement of the post and at the requirements and recommendations and at the job output. There were nine requirements and five recommendations with a score of seventeen in total. Six (6) people were approved for the post, and five (5) candidates were shortlisted. The applicant was scored at 10 and the cutoff score was 11 and he did not meet the cutoff score of 11 and he was not invited to the interviews. There were instances where the applicant did not attach qualifications/certificates and in the advert, it was made clear that incomplete applications will not be considered. He however submitted his certificate for blended learning as it was a requirement.
23. It was recommended in the advertisement that registration as assessor/moderator is one of the recommendations and the applicant did not attach his certificates to his application. The witness commended on the employment equity on page 30 of bundle “R” and he stated that at Caledon Campus there is no coloured or black females in management.
24. Under cross-examination he confirmed that he is familiar with the advert of the post on page 84 of bundle “A” and there are nine requirements, and the applicant did not meet all of these requirements as he did not submit required documentation as requested. It is therefore correct that in the shortlisting process the cutoff score was 11 and the applicant scored 10. It was agreed that in the first stage of the grievance on page 132 it was not referred to blended experience and the use of education technology as one of the requirements not met by the applicant. He agreed that they are using a form of blended learning at the college, but it is not enforced. The employment equity report was also taken into consideration as it is a continuous process to fill gaps and imbalances in the equity structure of management.
25. It was put to the witness that the Recruitment and Selection process appears on page 20 onwards of bundle “A” and it must be taken into consideration and he agreed. On page 23 under Equity it states in 2.3.4 that Recruitment and Selection committees must consider the college Employment Equity plan and targets for the specific occupational level being recruited. The witness agreed that the committee must not deviate, and he agreed that the targets are different from the organogram. The criteria for equity were not based on the equity status of the college, and the shortlisting is done on pages 108 to 110 of bundle “A”. The applicant had stated that he was never before asked to provide all the documentation but it is the same or similar requitements as in 2020 and 2022 The witness stated that the applicant applied in 2025 and he was asked to provide copies of all necessary documentation and he did not provide his documentation for assessor, mediator and SACE registration. The witness stated that he disagreed with the interpretation of the representative of the applicant in clause 4.3.2.5 that the applicant must be shortlisted if he acted before in the same position. The applicant did not meet the cutoff score although he acted before in 2020 and 2022 in the same position.
26. Under re-examination he stated the criteria could not be changed to accommodate the applicant. It is true that the criteria could have changed from 2020 to 2022 and then in 2025.
    The second witness of the respondent, Thaimisi Ndumisa, HR Manager after having been sworn in, testified as follows:
27. The second respondent stated that on page 61 of the DHET Recruitment and Selection Policy under shortlisting point 4.2.3 (e) it states: “Applicants who meet the minimum requirements of the post and had an opportunity to act in the same vacant post must be shortlisted in the selection process, provided they were duly appointed by the appointing/delegation authority”. He explained that the applicant was not shortlisted automatically as there are principles that guide the process like (1) Fairness; (2) Transparency; and (3) Professionalism and credibility. The Panel assessed the application of the applicant for shortlisting but there were outstanding documents regarding assessor and moderator training and registration. The applicant was not the only person who applied and not shortlisted due to not sufficient and outstanding documents and the Panel cannot request outstanding documentation. This decision was based on credibility and professionalism.
28. The witness further stated that people falsified documentation and must provide the necessary documentation, and, in the advert, it states that incomplete applications will not be entertained. On page 41 of bundle “R” appears the advert for the post and at the bottom it states that an incomplete application will not be considered. He stated that the applicant must ensure his application is the one to be sifted and scrutinised and that it is complete and he tick all the boxes if he wants to compete with other applications. From the respondent side they must take time to complete the application and provide all the information required. If the application of the applicant is incomplete, then it is automatically disqualified according to the sifting and shortlisting criteria, and he will not go through to the interview process.
29. Under cross-examination the witness confirmed that he was present during the first session of the arbitration, and he listened to the respondent’s first witness testimony. He stated that the advert on page 84 of bundle “A” has a different heading. He confirmed that assessor and moderator documentation is under the heading of recommendations and not under requirements. He again confirmed that the application of the applicant was incomplete, and the applicant was not informed about it. If shortlisting candidates did not receive a letter within one month, they must accept that they were unsuccessful. On page 112 of “R” appears the second page of the record of shortlisting and the Panel used it. Under shortlisting there were six (6) candidates but only five (5) were interviewed. The applicant was disqualified for shortlisting. The witness explained the process again.
30. He stated that the applicant did not meet the minimum requirements as he did not obtain the minimum score of eleven (11). The interpretation on who must be shortlisted was based on the Panel and all candidates must meet the minimum or cutoff score. The advertisement clearly stated that the applicant must attached all the supporting documentation. It states under “Please Note”, that copies of all qualifications to be attached. It was stated that it is a short course qualification of assessor and moderator training and it was disagreed by the representative of the applicant. It was stated that the applicant had completed a POE and then it is a qualification and recommendations is not requirements. It was further stated that the applicant acted previously in the same position and he also did not attach assessor and moderator documentation. The witness stated that the acting process since 2022 was revised and the process changed in 2025. The representative of the applicant responded that the advertisements since 2022 was the same and therefore there is nothing new. The witness stated that the applicant was not prejudiced as he is registered as assessor and moderator
    The third witness of the respondent, Danny Plaatjies, Deputy Principal for Corporate Services after having been sworn in, testified as follows:
31. The witness stated that on page 27 of bundle “R” appears the Employment Equity (EE) targets. The EE Plan required documentation and in EEA12 the figures are plotted and EEA13 is the targets that was approved in the three (3) year plan. This EE Plan was used in shortlisting. The situation of the EE targets in Caledon can be seen on page 31 and 33 of bundle “R”. It states under managers 2 to 5 it must be 8-10. Specific targets must be achieved, and it was achieved regarding white males, and it was over the target, but regarding coloured males it must be increased in the group. The Boland College position is on page 61 of “R”, and this requirement stands on two legs: (1) Minimum requirements and had an opportunity to act. The primary function is to make permanent appointments, but it is not always possible. In acting appointments, the post is advertised not as a permanent post but as an acting position. The spirit of acting is to provide personal development. The applicant was given an opportunity to act in the position before and now another person must also be given an opportunity to act in the position.
32. On page 50 of bundle “R” in point 2.3.4 under Equity it states: “All candidates should be measured against the same objective criteria regarding the need for diversity and the representativeness of the Department. Such criteria should be drawn up in advance of the selection process”. The witness said that it is unfair to expect the Panel member to give the applicant a change if he did not meet the minimum requirements and he did not submit to the minimum requirements. The witness stated that the Acting Policy is also appropriate, but it is a separate policy.
33. Under cross-examination he confirmed that he was present during the arbitration proceedings, and he said that the acting policy is relevant. It was put to the witness that the version of the EE targets was never put to the applicant and he confirmed. The College Chairperson was on the Panel and EE groups was considered but did not take it into account. The minimum requirements appear on page 84 of bundle “A”, but it was not asked about the score sheets. He concluded that the applicant was not meeting the minimum requirements based on hearsay evidence that was not provided by a Panel member, and the witness was part of stage 2 grievance process.
34. Under re-examination no questions were asked to the witness.

Closing arguments

35. The representative of the first respondent and the representative of the applicant sent written closing arguments by 12 February 2026, as agreed on 05 February 2026. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award. Analysis of evidence and argument
36. This is a summary of the relevant evidence and does not reflect all the evidence and arguments heard and considered in reaching my decision on this matter. In this arbitration I am firstly going to refer to the Employment of Educators Act 76 of 1998. Secondly, I am also going to refer to the Personnel Administration Measures (PAM) document. The power and authority to approve recommendations from the interviewing panels were never delegated. The PAM sets out the procedure to be followed when filling educators’ posts. It is common cause that the applicant, Shawn Jacobs Landman, occupied the position as a Level 1 lecturer at Boland TVET College and the advert for the acting position appears on page 84 of bundle “A” for the post: Educator Specialist Safety in Society (PL.2) Caledon Campus with reference number CAL/BC/ACT/PM/01/25. The applicant applied for the post via email and the reference number corresponds with the one on the advertisement. The applicant applied twice in 2020 and 2022 for the same acting position, and he was appointed and paid accordingly. When the same acting position was again internally advertised in 2025, he applied for the acting position, and he was not shortlisted by the respondent and not interviewed, according to the applicant, contrary to policy, and he was informed that his application form was incomplete and invalid.
37. Promotion is the process where an employee is evaluated to a position that carries greater authority and greater status than the current position that the employee is employed. Employers are expected to appoint the best, strongest candidate and unless the applicant proves that he was the best of all the candidates who applied for the position, no substantive unfairness has been proved. I am required to determine whether the first respondent committed an unfair labour practice (hereinafter an ULP) by not shortlisting and/or appointing the applicant in terms of Section 186 (2)(a) of the LRA in the acting position of Acting Program Manager: Education Specialist: Safety in Society (Pl.2) Caledon Campus: (a) Whether the applicant must be appointed in the acting position. In terms of appropriate relief if I find that the first respondent committed a ULP. (b) Whether the applicant receives compensation as he suffered financial and/or other prejudice for the duration of the acting period (10 months).
38. It is the testimony of the applicant that the advert there were nine (9) requirements and five (5) recommendations. The requirements were: (1) At least a relevant recognised three-year qualification (REQV13); (2) Qualifications in Education and Training; (3) Minimum 2-3 years teaching experience; (4) Qualified to lecture subjects in the relevant programme; (5) Experience in Blended learning, i.e. innovative teaching practices with the use of educational technology; (6) SAGE registration; (7) Proven Computer training in MS Office; (8) Valid driver’s license; and (9) Good communication skills (verbal and written). The recommendations were: (1) Registration as an Assessor//Moderator; (2) TVET sector experience; (3) Teaching or Training experience in the industrial environment; (4) Multilingualism will be an advantage; and (5) Program Leader experience.
39. The purpose of this submission by the representative of the respondent is to demonstrate, with reference to the documentary evidence contained in the applicant’s bundle and the applicant’s own testimony, that the claim of unfair disqualification from the recruitment process is without factual or legal merit and cannot be sustained.
40. It is submitted by the respondent that the applicant’s case rests primarily on clause 4.2.3.5 of the Boland College Recruitment and Selection Policy (page 30 of the applicant’s bundle), which he contends entitled him to automatic shortlisting on the basis that he acted in the post several years prior to the recruitment process. Clause 4.2.3.5 provides: “Applicants who meet the minimum requirements of the post and had an opportunity to act in the same vacant post must be shortlisted in the selection process, provided they were duly appointed by the appointing/delegated authority.”
41. According to the respondent, the applicant’s reliance on this clause is misplaced and legally unsustainable for the following reasons: First, the Recruitment and Selection Policy must be interpreted purposively and contextually. When read as a whole, its scope, structure, and stated objectives make it clear that it regulates the filling of substantive permanent and fixed-term vacancies. Acting appointments are expressly governed by a separate policy, namely the Acting Appointment Policy. That policy contains no provision equivalent to clause 4.2.3.5. Accordingly, the applicant’s attempt to rely on clause 4.2.3.5 in the context of a historical acting appointment is misconceived and unsupported by the applicable policy framework. Second, even on a plain and ordinary interpretation, clause 4.2.3.5 is clearly intended to prevent the unfair exclusion of a current incumbent who is acting in a post at the time that same post is being advertised and shortlisted for permanent filling.
42. It is submitted by the representative of the respondent that this is evident from the reference to “the same vacant post” and the purpose of ensuring procedural fairness to an employee already performing the functions of the position. That factual circumstance does not arise in this matter. The applicant’s acting appointment occurred several years prior to the recruitment process, and he was not acting in the post at the relevant time. No reasonable or purposive interpretation of clause 4.2.3.5 can extend its application to historic acting appointments unrelated to the current recruitment process.
43. In any event, even if the applicant’s interpretation of clause 4.2.3.5 were to be accepted arguendo, the clause does not override the express requirements set out in the advertisement. Page 84 of the applicant’s bundle clearly stipulates that all required qualifications must be submitted and expressly states that incomplete applications will not be considered. Assessor and Moderator qualifications are registered qualifications under the Quality Council for Trades and Occupations (QCTO) framework and are mandatory requirements. The applicant’s failure to submit these qualifications rendered his application incomplete and non-compliant. The consequence of this omission was not unfair on the part of the respondent, but rather a result of the applicant’s own failure to exercise due diligence in the submission of his application.
44. It was further submitted by the respondent that in the absence of any entitlement to automatic shortlisting, the applicant was required to compete on an equal footing with all other applicants in accordance with the Recruitment and Selection Policy. Section 1.1 of the Policy (Policy Statement) on page 22 of the applicant’s bundle requires the selection panel to identify the most suitable candidates. Section 2.1 (Purpose) further emphasizes the objective of ensuring that suitably qualified candidates are employed. Section 4.2.1.2 (page 28) explicitly states that selection on merit is fundamental to recruiting individuals of the highest caliber. Section 4.2.1.3 further provides that selection criteria must relate to the inherent requirements of the job, considering key competencies acquired through experience, training received, and relevant skills.
45. It is therefore beyond dispute according to the respondent that the panel was properly mandated to shortlist candidates based on merit, using criteria aligned to the inherent requirements of the position as set out in the advertisement. The respondent submits that the panel acted fully in compliance with the Recruitment and Selection Policy in establishing and applying the shortlisting criteria. The panel determined that a minimum score of 11 out of 17 was required to qualify for an interview. The applicant failed to achieve this minimum threshold and was accordingly not shortlisted. The applicant’s failure to meet the threshold score arose primarily from his omission to submit proof of Assessor and Moderator qualifications. This omission was conceded by the applicant in his own testimony. In the absence of supporting documentation, the panel was justified in not allocating points for these criteria.
46. Furthermore, the advertisement on page 84 of the applicant’s bundle explicitly required registration as an Assessor and Moderator. It is common cause that such registration requires documentary proof, including SETA registration details, provider accreditation numbers, and relevant unit standards. The applicant’s curriculum vitae merely reflects “2019 assessors/moderators” (page 47 of the applicant’s bundle) and contains none of the required particulars or proof of registration. Even if it were to be suggested that the mere reference to “2019 assessors/moderators” sufficed, which is denied, the applicant would still not have qualified for scoring under this criterion, as the recommendation explicitly required registered Assessor and Moderator status supported by proof. No such proof was submitted.
47. The respondent submitted that it applied its Recruitment and Selection Policy consistently, lawfully, and in good faith. The recruitment process was conducted in accordance with the advertised requirements and the principle of merit-based selection. The respondent further submitted that the responsibility rested squarely with the applicant to ensure that his application was complete and complied with the stated requirements. Considering the above, the respondent respectfully submitted that the applicant has failed to discharge the onus of conduct proving an unfair labour practice and that the claim should accordingly be dismissed.
48. The applicant herewith submitted his closing arguments, and the headings are used for ease of reference, but the whole document must be considered. The applicant commenced employment with the respondent in January 2017 and holds the position of Lecturer: Safety & Society Worcester Campus Pl. 1, earning a salary of R 26 599.25 (Basic Salary: R 24 626.25).
49. It is submitted by the representative of the applicant that he confirmed that the applicant met the minimum requirements and he possessed the required qualifications. He was registered with SAGE, and he had acted in the post on two previous occasions. He was duly appointed when acting and he relied on Clause 4.2.3.5 of the Recruitment and Selection Policy. He exhausted internal grievance remedies, and he quantified his financial prejudice. The Recruitment and Selection Policy (clause 2.3.4) states that the committee must consider the respondent’s Employment Equity Plan and targets for the specific occupational level. The policy states that applicants who meet the minimum requirements and had an opportunity to act in the same vacant post must be shortlisted. It is common cause that the applicant acted in the post and he was duly appointed. He was not disqualified for failing minimum requirements and yet he was not shortlisted.
50. The representative of the applicant submitted that the respondent relies on the cut-off score, but the cut-off score is a mechanism created by the panel. It cannot override a mandatory policy provision. The policy says “must”. The fairness of the shortlisting decision must therefore be measured primarily against the panel’s conduct, not HR’s post hoc justification. During cross-examination, Mr Tshusini made a crucial concession. He agreed that the applicant met the minimum requirements. He further confirmed that the applicant previously acted and the triggering elements of Clause 4.2.3.5 were therefore satisfied.
51. It is further submitted that Mr Tshusini repeatedly testified that the applicant’s application was “incomplete”, and Assessor and Moderator certificates were not attached. Incomplete applications will not be considered and fairness and transparency required strict adherence to documentation. However, under cross-examination he accepted that the Assessor and Moderator requirement appears under “Recommendations”, not “Requirements”. He accepted that the advertisement refers to attaching qualifications, not recommendations and he conceded that page 112 (shortlisting minutes) does not record that the applicant’s application was incomplete. He confirmed that only one candidate was disqualified for failure to meet minimum requirements — and that was not the applicant.
52. He further submitted that the shortlisting minutes reflect that the applicant proceeded beyond sifting and was considered by the panel. If the application was truly “incomplete” in the disqualifying sense, it would have been recorded as such — as it was for the SACE non-compliant candidate. Mr Tshusini attempted to reconcile the mandatory wording of Clause 4.2.3.5 with the scoring system by stating: Although the applicant met minimum requirements, he did not meet the “cut-off score”. He expressly conceded that this was the interpretation of HR and the panel. The addition of a cut-off requirement is not contained in the text of the policy. It is an interpretation adopted by management. A management interpretation cannot override the plain wording of a mandatory policy provision.
53. The explanation relied on general statements about evolving processes, not documented amendments. The Recruitment and Selection Policy placed before this Commissioner is the same policy relied upon by both parties. Mr Tshusini initially justified strict documentation compliance by referring to fairness to “external applicants”. It became clear under cross-examination that this was an internal post. The applicant was an internal lecturer, and the panel members knew him. The HR department had access to his employment records, and he had previously acted in the same post. The justification of protecting external applicants carries little weight in the context of an internal acting appointment governed by a mandatory shortlisting clause.
54. Mr Plaatjies was not a member of the shortlisting panel. His evidence is therefore interpretative and post facto, not decisional. The only written policy properly before this Commissioner is the Recruitment and Selection Policy — which both parties relied upon throughout. An unproduced policy cannot override a written policy clause that uses mandatory language. Once it elected to follow the Recruitment and Selection Policy, it was bound by all its provisions — including Clause 4.2.3.5. Nothing in Clause 4.2.3.5 excludes acting appointments. Nothing in the clause limits its operation to permanent posts. If the respondent intended that the clause apply only to permanent appointments, it would have said so. It did not. The wording is general and peremptory.
55. It is further submitted by the representative of the applicant that Mr Plaatjies testified that the clause “stands on two legs” namely minimum requirements and prior acting. He then concluded that the applicant did not meet minimum requirements because his application was “incomplete”. Furthermore, he conceded that his understanding was derived from the grievance process, not the recruitment process. This is hearsay. More importantly: The applicant was not told during the process that his race or gender was the determinative reason for exclusion. If EE was decisive, it should have been transparently applied and consistently testified to.
56. According to his representative the applicant’s case is narrower: He claims a right to be shortlisted in accordance with Clause 4.2.3.5. The policy does not say: “may be shortlisted if development considerations allow.” It says: “must be shortlisted.” The employer’s discretion to give others development opportunities arises after shortlisting — not by ignoring a mandatory clause. It does not rebut the applicant’s case. Rather, it reinforces that the respondent seeks to justify non-compliance with Clause 4.2.3.5 by reference to discretion not contained in the text of the policy. Once the respondent elects to apply its Recruitment and Selection Policy, it must comply with it fully. The acting nature of the post does not permit deviation from mandatory policy provisions.
57. Section 186(2)(a) of the LRA defines an unfair labour practice as any unfair act or omission relating to promotion. In Public Servants Association obo Nortier & Duminy v Department of Justice & Others (2003) 24 ILJ 2329 (LAC), the Labour Appeal Court recognised that a distinction is generally drawn between “appointment” and “promotion”, with external candidates being appointed and internal candidates being promoted. According to the representative of the applicant, in the present matter, the applicant was an internal employee seeking advancement to a higher graded and better remunerated post. Although the position was acting in nature, it constituted internal upward movement and falls within the ambit of “promotion” as contemplated in section 186(2)(a) of the LRA. The acting label does not alter its substantive character as promotional advancement. It is well established that acting appointments and shortlisting decisions fall within the scope of promotion disputes where the opportunity to compete fairly, is affected.
58. In Noonan v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2597 (LAC), the Labour Appeal Court confirmed that an employee does not need to prove that he would have been promoted to succeed in a promotion dispute. Where the promotion process is procedurally flawed and the employee was required to compete in a tainted process, an unfair labour practice is established. The Court held that even if the employee cannot show that he would certainly have been appointed, compensation may be awarded where the integrity of the process was compromised.
59. 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) it was held, with reference to the Arries judgment (supra), that the overall test is one of fairness. Applying the fairness test articulated above, the respondent’s conduct in this matter cannot withstand scrutiny. The evidence demonstrates material scoring errors, inconsistent treatment of requirements, deviation from the plain wording of Clause 4.2.3.5, and the insertion of a cut-off mechanism not contained in the policy. These factors indicate a decision based on a wrong principle and one that was arbitrary and procedurally unfair. The issue is not whether the applicant was guaranteed appointment, but whether the process by which he was excluded from shortlisting was fair. On the evidence before the Commissioner, it was according to the representative of the applicant, not.
60. The applicant seeks compensation equivalent to the acting allowance he would have earned during the acting period. The applicant respectfully requests that the Commissioner find that the respondent committed an unfair labour practice and grant compensation as set out above.
61. In Sun International Management (Pty) Ltd v CCMA and others (JR939/14) [2016] ZALCJHB 433 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 qualifications 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. The employee must also show that the breach of the procedure had unfairly prejudiced the employee. The employee must not merely show that that he was the suitable candidate for consideration, but that he was the best candidate. I find that in this case in question the applicant could not show that he was the best suitable candidate for consideration, but he also could not prove that he was the best candidate for the acting position.
62. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the recruitment and selection process. There is no general right to promotion or acting in a higher position. What employees do have, is a right to be fairly considered for acting in this case when a acting position arises. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for acting. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not shortlisted for the acting position.
63. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a acting/promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then for the employee to prove an unfair labour practice relating to acting/promotion, he should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post.
64. I find that the procedure followed by the Panel constituted was appropriate and the applicant was not prejudiced in any way as he was excluded from shortlisting because he did not meet the minimum requirements and recommendation as advertised in page 84 of bundle “A” for the acting position. The panel determined that a minimum score of 11 out of 17 was required to qualify for an interview. The applicant failed to achieve this minimum threshold and was accordingly not shortlisted. The applicant’s failure to meet the threshold score arose primarily from his omission to submit proof of Assessor and Moderator qualifications. There was no proof of conduct that denied him a fair opportunity to compete in the acting post if his application was “complete”.
65. In deciding whether conduct relating to an acting/promotion was unfair, an arbitrator in an acting/promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair acting appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
66. As indicated, the applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the unfair labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did not suffer prejudice during the recruitment and selection process for the acting post as he was not shortlisted due to an incomplete application form for the acting position. I find that the procedure followed was fair and that an unfair labour practice was not committed by the first respondent not to shortlist the applicant based on no submission of his Assessor and Moderator documentation as well as his SACE documentation as recommended in the advertisement.
67. Considering the above I make the following award.

AWARD

68. The first respondent did not commit an unfair labour practice in the non-selection of the incomplete application of the applicant to the advertised acting position for the post: Educator Specialist Safety in Society (PL.2) Caledon Campus with reference number CAL/BC/ACT/PM/01/25. It is not appropriate to remove the successful candidate, Seymore Bothman, from the acting post, if still acting, as he met all the requirements to be appointed. However, the applicant, WC Landman, must also not be compensated as there was no unfair labour practice committed by the first respondent.
69. There is no order as to costs.

Signature:

Panelist: Gert van der Berg
Sector: Education Department of Western Cape