Case Number: ELRC920 – 25/26EC
Commissioner: Mbulelo Safa
Date of Award 27 March 2026
In the ARBITRATION between: –

VUYOKAZI HAPPINESS GWAYI
Applicant

And

EASTERN CAPE DEPARTMENT OF EDUCATION
1st RESPONDENT

FUNDISWA MDUTSHANE
2nd Respondent

DETAILS OF THE HEARING AND REPRESENTATION

1. The Arbitration was held on the 09 February 2026 and concluded on the 04 March 2026 at the offices of the Winnie Madikizela Mandela Local Municipality in Bizana.
2. The Applicant was represented by Mr Zwelidumile Gwayi who is a colleague, the first Respondent represented by Mr Khaya Kupelo who is their Deputy Chief Education Specialist for Labour Relations and the Second Respondent represented herself. ISSUES TO BE DECIDED
3. To decide whether or not if the decision of the First Respondent not to appoint the Applicant in the vacant post of the Deputy Principal at Ncurha Senior Secondary School (the school) in the OR Tambo Coastal District of the Respondent was procedurally and substantively unfair and to make an appropriate award in terms of section 193 of the LRA. BACKGROUND TO THE ISSUE
4. The Applicant is employed by the First Respondent as an educator. She applied for the advertised post of Deputy Principal at the school, but she was excluded from consideration through the sifting process on the basis that she did not qualify for the post and did not completely fill the form.
5. The relief the Applicant is compensation amounting to twelve months salary.

SURVEY OF EVIDENCE AND ARGUMENT

6. Each party led oral evidence through one witness. The first Respondent submitted one bundle of documents whilst the Applicant submitted three bundles of documents.
7. At the conclusion of the arbitration the parties proposed to submit written arguments by 12 March 2026. Both parties submitted their arguments, and they were considered in this award.
   APPLICANT’S EVEDENCE AND ARGUMENT
8. The Applicant, Vuyokazi Happiness Gwayi, testified that she was a qualified educator, having obtained the Junior Primary Teachers Diploma.
9. She testified that the Junior Primary Teachers Diploma qualified her to teach in grades R to 3 but she qualified for the post because she has been teaching in the Senior Phase and FET phase since 2002.
10. In April 2002 she was employed by the First Respondent at the school as an educator. At the time the school was a Junior Secondary School (starting from grade 1 to grade 9). In 2017 the school was affected by the process of the First Respondent called rationalization according to which the school became a Senior Secondary School (from grade 8 to grade 12).
11. She testified that from 2002 to 2016 she was teaching at Senior Phase (grades 7, 8 and 9) where the actual subjects she was teaching were Life Orientation, Creative Arts and Economic Management Services. In 2008 she taught at Foundation Phase and later returned to teach at Senior Phase from 2007. When the school was rationalized in 2017 she taught at Senior Phase and at FET phase.
12. She said that she was currently teaching English in grades 8 and 10, Life Orientation in grade 12 and in grade 12 she has been producing a 100% pass rate. In 2024 she was awarded the certificate as the best performing educator in grade 12.
13. During all the years she was teaching at the school she was teaching, assessing, managing the classroom and supervising other educators’ work. She testified that in 2016 she produced a learner who became the second best in the province in Careers Dress Up day
14. She also testified that in the period from 2006 to 2017 she was also the subject committee coordinator where they were making policies for the subjects. During that period, she was also elected as the school IQMS coordinator and also coopted to the School Management Team when one of the educators got promotion to another school. She conceded that she was in the leadership position when the school was still a Junior Secondary School before the school was rationalized.
15. She said that in all the success she had she felt the Respondent treated her unfairly.
16. She said that in terms of management she had experience in supervising teacher portfolios. She said that even though she did not have the management certificate, she had experience. She said she believed that management must be acquired through experience and not necessarily through qualifications.
17. She conceded that she did not possess a management qualification but insisted that she met the requirements of the post. She also said she attended a management training organized by the Respondent in 2012 but she never received a certificate.
18. She testified that in 2019 she applied for the post of Departmental Head and she was sifted out but then she did not complain. The incident which led to the current dispute was therefore happening for the second time.
19. She said the First Respondent was happy with her work but not happy to give her a promotion post.
20. She referred to the incident where another educator called Nomakhosi Ngqiba had the same qualifications as herself and was promoted to the post of Departmental Head in 2024. She said the educator was appointed despite the fact that the advertisement required someone to be the Departmental Head for grades 8 to 12 English (First Additional Language), Life Orientation and Management.
21. She said that in a grievance meeting the First Respondent did not say anything about an incompletely filled form. They only mentioned her qualifications. She said it was only after the grievance meeting that the First Respondent said something about an incomplete form.
22. Referring to page 35 she said she submitted all the documents listed therein but after submitting them there was no feedback from the Respondent. Referring to page 138 she said the document there was confirmation that the Applicant was coopted to the School Management Team. She also referred to page 136 which she said was the extract from PAM in particular chapter B.
23. Referring to page 8 and 9 of Respondent bundle, she said the candidates listed therein made it to the next stage of the selection process. She referred to the last candidate, Mr Lukhophe, who was shortlisted but was not qualified to teach English as per the requirements of the post on the advertisement. She said that not all the shortlisted candidates had management qualifications. She also referred to another candidate, Duntlane, who she said she was not sure of because in the master list she is listed as only having NPDE and no indication that he had a management qualification.

RESPONDENT’S EVIDENCE AND ARGUMENT

24. The witness of the Respondent was Khuthala Mziwabantu who is employed by the Respondent as Deputy Director for Human Resource Administration and Provisioning.
25. She started by outlining the various stages of the process of appointing an educator where she said the first stage was the profiling of the post, advertisement of the post, receipt of applications, after closing date the Human Resource start the process of sifting.
26. After sifting a meeting is held with unions to give them a report about the sifting. The feedback is also given in writing to candidates who have been sifted out. In the case of the Applicant an email was sent to her and she acknowledged its receipt.
27. She referred to ELRC Collective Agreement 1 of 2024 which gave guidelines and providing uniform procedures for the filling of educator posts. She particularly referred to paragraphs 3.1 and 3.4 which deal with sifting of candidates.
28. She testified that the Applicant’s application was sifted out because she did not match the profile of the post in that she had a Junior Primary Teachers Diploma (JPTD) which qualified the person to teach in grade one to three whereas according to the advertisement the post wanted someone who could teach in Secondary School. She also said the qualifications needed for the post were either BEd in Senior Phase or Secondary Teachers Diploma. She said that in her application the Applicant acknowledged that she did not qualify for the post.
29. The witness also testified that they verified the profile of the Applicant and established that the Applicant did not have a management certificate. She also said there was no confirmation that she was ever coopted to the School Management Team. She said the letter on the bundle was only written in February 2026 and was not there when they sifted.
30. Referring to pages 42 and 43 she said the Applicant failed to submit the email address on the form and also did not complete the section where she was supposed to enter her highest REQV level.
31. She said they used clause 3.4 ELRC Collective Agreement 1 of 2024 where it is recorded that incomplete application forms will not be considered read together with clause 2.3.4 and 2.3.5 where it recorded that two referees and reliable email address must be provided respectively.
32. When it was pointed out to her that the Applicant provided the email address in her curriculum vitae (CV) she said the Applicant only provided the email address in the CV.
33. When referred to page 43 of bundle 3 he said the candidate provided two references and what he did complied with clause 2.3.4 of the Collective Agreement which allows for a minimum of two referees.
34. She disputed the version of the Applicant that she had experience of being an acting Departmental Head. She said the Respondent does not authorize acting appointments unless for the post of the principal.
35. When referred to another candidate, Msutsa, who had BEd but no management certificate but was not sifter out, she said according to the academic transcript of Msutsa he had a management module in his BEd qualification.
36. Referred to another candidate, Ngqika, who had the same qualification as the Applicant but was appointed to the post of Departmental Head she said Ngqika was promoted before the Collective Agreement was ratified. She also said the advert for the post of Ngqika had its own requirements. She however conceded that Personnel Administrative Measures (PAM) have always been used in promotions and that clause 5.3.1.1 were the carbon copy of the clauses in the Collective Agreement.
37. When it was pointed out to her that the Second Respondent was shortlisted and appointed even though she did not qualify to teach English, she said the Second Respondent was sifted in because she was qualified and had a module on language competency.
38. Referred to another candidate who majored in History and Political Studies and was teaching History and IsiXhosa but was sifted in, she said that candidate was sifted in because his application was fully completed and he was already a Departmental Head, thus a manager. She conceded that the candidate was not teaching English as per the requirements of the post.
39. Referred to another candidate, Duntlane, on page 3 who had NPDE for Senior Phase she said the candidate was qualified to teach at Senior Phase and also had an Advanced Certificate in Management.
40. She disputed that the Applicant was treated unfairly and prejudiced. She however could not comment on how the Applicant was treated compared to Ngqika as she was not briefed about Ngqika and thus had no details about Ngqika including her qualifications.

ANALYSIS OF EVIDENCE AND ARGUMENT

41. This is an unfair labour practice dispute in terms of section 186(2) of the Labour Relations Act and in terms of section 192 of the Labour Relations Act the onus is on the Applicant to prove the unfair labour practice.
42. The Labour Court in Buffalo City Public FET College v CCMA and Others (P 372/12) [2016] ZALCPE 18 held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee (Applicant) to prove that he/she is a suitable and better candidate for the position in question. In this dispute the case of the Applicant was never about being the best candidate but being unfairly treated by the First Respondent.
43. In her evidence the Applicant testified that she was aggrieved by the fact that she was sifted out of the process, the result of which was that her application did not even reach the School Governing Body for consideration in shortlisting.
44. Clause 3 of the Eastern Cape ELRC Collective Agreement 1 of 2024 deals with sifting and at clause 3.2 records that “the Eastern Cape Department of Education shall handle the sifting process to eliminate all those candidates who do not comply with the requirements for the post as stated in the advertisement…” At clause 3.4 it is recorded that “incomplete applications will not be considered after the sifting process has been completed.”
45. In terms of clause B.3.2.1 of PAM the minimum requirements for the post of Deputy Principal are a recognized three or four teaching qualification, registration with SACE, five years of actual teaching experience and good management and leadership skills.
46. The evidence of the First Respondent was that the Diploma (Junior Primary Teachers Diploma) the Applicant had was for teaching in the Foundation Phase and not in the Senior Phase and Further Education and Training (FET)phase
47. In terms of the advertisement the additional requirements for the post were; teaching of English in grades 8 to 12, Management and Administration.
48. It was common cause that the Applicant was qualified to teach in the Foundation Phase and did not have a management qualification. At the arbitration the First Respondent referred extensively to the effect that the Applicant did not have a management qualification.
49. In both the PAM document, the Collective Agreement and the advertisement there is no mention of the possession of the management qualification. All these documents simple record, “management, administration and leadership”.
50. In her application letter the Applicant highlighted various management, leadership and administrative roles she played in the period since 2005. The letter also records that she had the experience of teaching English having taught it in grades 7 to 9 and also having taught other subjects in the Senior and Further Education and Training Phases. The contents of the letter show that the Applicant had ‘management and leadership’ and thus met the minimum requirements for the post. Whether the management and leadership she had was relevant and/or sufficient would have been determined during the shortlisting process.
51. My understanding is that in the appointment process sifting is the first stage which is administrative in nature. It is a process where boxes are ticked as part of screening the candidates so that candidates who do not meet the minimum requirements for the post are disqualified.
52. It is to be expected that during sifting the sifting authority will check if the particular candidate has a recognized three- or four-year teaching qualification, is registered with South African Council of Educators and has five years teaching experience.
53. The authors of the PAM document preferred to use the word ‘recognized’ as against ‘relevant’ because, in my view, they anticipated that it will be during the shortlisting process where the interview committee would determine the relevance of the teaching qualification. It is also during the shortlisting process where the interview committee may decide, as part of shortlisting criteria, that they need a candidate with a management qualification or proven experience in management and/or any other criterion.
54. My view is that by disqualifying the application of the Applicant the First Respondent encroached into the realm of the shortlisting stage and by doing that they erred. Their action prejudiced the Applicant in that she missed the opportunity of having her application being considered by the School Governing Body.
55. The other allegation of the Applicant was that she was treated differently, or alternatively, the First Respondent was not consistent in the application of the rule in that other candidates who did not meet the requirements were not disqualified. Here under are some of the candidates the Applicant referred to in her evidence.
56. It was not disputed that Second Respondent is qualified to teach IsiXhosa and not English as the advertisement required. The response of the First Respondent that the Second Respondent had a module in Language Competency is clearly not satisfying as Language Competency does not make an educator qualified to teach English.
57. The other candidate was Mr Lukhophe who majored in History and Political Studies and indicated in his application that he was teaching History and IsiXhosa, and not the English required in the advertisement. The response of the Respondent was that Mr Lukhophe was already a Departmental Head and therefore already in management. My view is that the situation of Mr Lukhophe was similar to that of the Applicant because both of them did not have a management qualification as Human Resources wanted and Mr Lukhophe was even worse off because there was no record that he ever taught English. A proper comparison between them would have been made during shortlisting.
58. The last comparator was a Miss Ngqika who had the same qualifications as the Applicant but was appointed in the post of Departmental Head at the school where the advertisement wanted someone to teach English and Life Orientation at grades 8 to 12 and must also have management. The response of the First Respondent was only that the appointment of Ngqika was done before the Collective Agreement was ratified. This response cannot be sustained because the Personnel Administrative Measures (PAM) from which the Collective Agreement is originates have always been there to guide the appointment of educators. The situation of the Ngqika was hence similar to that of the Applicant and they should have been treated in a similar way.
59. My findings are that with regard to the three candidates the First Respondent acted inconsistently towards the Applicant.
60. In terms of the evidence of the First Respondent the Applicant was disqualified also because she did not completely fill in her application form. It was cited that the Applicant did not submit her email address and REQV in the application form.
61. A closer reading of clause 2.3 of the Eastern Cape ELRC Collective Agreement 1 of 2024 reveals that the clause deals with CVs and at clause 2.3.5 it records that a reliable email address must be provided. Clause 2.3.5 does not say the email address must be provided in the application form, it only says there must be a reliable email address. The Applicant provided the email address in her CV and hence complied with clause 2.3.5 and consequently the First Respondents were able to communicate the results of the sifting to her.
62. With regards to the REQV level indeed the information is not filled, but the same information is available as the Applicant listed her qualifications at clause 17.2 of the form and in her CV.
63. It is understandable that the Applicant is an educated person and ought to have completely filled the form. However, I do not think the authors of the Eastern Cape ELRC Collective Agreement 1 of 2024 meant to frustrate the applicants and have them disqualified even for information that is available in the CV.
64. It needs to be noted that clause 3.4 relates to ‘incomplete applications’ and not ‘incomplete application forms’. My understanding is that ‘the application’ is the set of all documents that are part of the application which includes the application form, CV, certificates and other required documents. The interpretation of clause 3.4 as if it was related to the application form was hence in error.
65. The First Respondent erred in disqualifying the Applicant from being shortlisted for the reasons they stated because she met the minimum requirements for being considered. She had the three-year teaching qualification, had more than five years teaching experience and there was no dispute that she is registered with SACE.
66. The Labour Appeal Court in Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9; [2012] 9 BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) (1 June 2012) the LAC confirmed the decision of the Labour Court in the same matter that there is no right to promotion, there is only a right to be given a fair opportunity to compete for the post. The court further held that any conduct that denies the employee an opportunity to compete for the post constitutes an unfair labour practice.
67. The actions of the First Respondent in disqualifying the Applicant amounted to unfair labour practice because they denied the Applicant the opportunity to compete for the post.
68. Clause 55 of ELRC Collective Agreement 3 of 2016 states that as long as the decision of the employer can be rationally justified, mistakes in the process of evaluation do not constitute unfairness that justifies interference with the decision to appoint. In this dispute there is no justification for me to interfere with the appointment of the Second Respondent.
69. However, since the Applicant was denied an opportunity to compete for the post and was also on the receiving end of the unfair labour practice, she deserves to be compensated for the loss.
70. Clause 71 of ELRC Collective Agreement 3 of 2016 provides that the Applicant is entitled to compensation to compensate for the non-matrimonial loss. The collective agreement also holds it that compensation is in the form of solatium for the loss of a right. Any amount to be considered must be just and equitable.
71. In the circumstances I make the following award;

AWARD

72. The action of the First Respondent in disqualifying the Applicant from consideration for the post of Deputy Principal at Ncurha Senior Secondary School amounted to unfair labour practice.
73. The Respondent is ordered to pay the Applicant solatium amounting to R50 000 which must be paid within thirty (30) days of the date of issue of this award.

Mbulelo Safa: PANELIST